Opinion
No. CV01 0449182S
February 26, 2009
MEMORANDUM OF DECISION
The petitioner had filed a habeas corpus petition and a trial was held on the petition.
I.
In this habeas proceeding the petitioner Billington raises two basic arguments. He claims the State withheld exculpatory materials thus violating the mandate of Brady v. Maryland, 373 U.S. 83 (1963) and that he was denied the effective assistance of counsel because the defense lawyer (1) failed to request DCF records; (2) failed to adequately or properly cross-examine several state witnesses; and (3) was ineffective regarding advising Mr. Billington not to testify. As will be discussed, the failure to request the release of DCF records falls under case law dealing with the issue of failure to adequately investigate a case which under the circumstances of a particular case can reflect deficient performance by the attorney.
In the post-trial brief submitted by the petitioner, he does not appear to contest the violation of probation representation, but does claim ineffective assistance of counsel in his 2000 jury trial wherein in October of 2000 he was convicted after jury trial of two counts of sexual assault in the first degree in violation of § 53a-70(a)(2) CGSA, one count of sexual assault in the second degree in violation of § 53a-71(a)(1), and two counts of risk of injury to a minor in violation of § 53-21. On December 12, 2000 the trial court imposed a forty-year sentence consecutive to an eight-year sentence on violation of probation charge. The matter was appealed to the Appellate Court which in 2003 reversed his conviction of "sexual assault in the second degree and (affirmed) the judgment of the trial court in all other respects." See State v. William B., 76 Conn.App. 730.
The Appellate Court determined as regards the October 2000 jury trial conviction that the jury could find the following facts:
"The defendant is the victim's father. From the time she was born in 1982 until 1993, the victim lived with the defendant, her mother and her half-sister in the town of B. In 1993, when her parents separated, the victim resided with the defendant in the town of S. until she was removed from his care in late 1994 or early 1995. Prior to the separation, the victim's half-sister saw the defendant perform cunnilingus on the victim and witnessed the victim perform fellatio on the defendant. Those acts occurred two or thee times a week when the victim's mother was not at home. The victim was not a willing participant in that sexual activity, and the defendant gave her money, candy or cigarettes so that she would not tell anyone.
Subsequent to the defendant's divorce from his wife, a male acquaintance of the defendant visited him and the victim in their home in the town of S. He participated in a game invented by the defendant called "naked hide-and seek." The defendant's game was played by turning out the lights and hiding. The person who was found had to remove an article of clothing. The game ended when everyone was naked. The defendant encouraged his acquaintance to touch the victim sexually. According to the acquaintance, he subsequently was convicted of sexual assault in the first degree for acts he perpetrated on the victim when he was with the defendant and the victim.
During the time the victim was living with the defendant in the town of S., the victim's school friends visited their home every day. In 1994, one of the school friends observed the defendant make frequent sexual gestures and comments to the victim. She saw the defendant gesture with his tongue as if performing oral sex and saw him touch the victim's buttocks. She was present when the defendant dared the victim to remove her shirt in front of him, which the victim did. On one occasion, the defendant pretended to go into the shower, but instead jumped naked in front of the school friend, the victim and another girl. Sometime in late 1994, the victim's school friend told her mother, and then the police, what she had observed. The police conducted an investigation as a result of the school friend's report. Shortly after the school friend made her report, the victim was removed from the defendant's care by agents of the department of children and families, who instituted neglect proceedings against the defendant.
In May 1998, agents of the department of children and families referred the victim to the Children's Home of Cromwell (home), a residential treatment center for children who have encountered severe emotional abuse and are in need of therapy. The victim was placed in the home as a result of her self-injurious behavior, suicidal ideation, aggressiveness, obsession with death and dying, and attempted suicide. During the course of her treatment at the home, the victim revealed to her therapists that the defendant has sexually abused her.
In April 1999, Michael Shanley, a police detective, interviewed the defendant about the victim's allegations of sexual abuse. In response to questions as to whether he had had sexual relations with his daughter, the defendant responded, "I don't remember." The defendant was arrested soon thereafter and charged with the crimes of which he has been convicted."
II
The court will first attempt to discuss the general principles of law that the petitioner relies upon.
The petitioner claims that he did not receive the effective assistance of counsel. A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the federal constitution at all critical stages of a criminal prosecution. In Duperry v. Solnit, 261 Conn. 309, 335 (2002) the court, relying on Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), said that:
The principles of law involved in making a Brady claim will be discussed later in this opinion.
. . . [T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for defense counsel's deficient representation, the result of the proceeding would have been different.
The court will discuss the first requirement of an ineffective assistance claim — did the representation fall below an objective standard of reasonableness. Then the court will discuss the second aspect — given ineffective assistance was there prejudice.
(1)
The Strickland court discussed in some detail the nature of the effective assistance counsel must provide. At pages 687-88 the court said perfection is not required, what is being talked about is reasonably effective assistance. Also an "objective standard of reasonableness" must be applied. Reasonableness is to be determined by examining all of the circumstances. At page 689 Strickland went on to say that: "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.'"
(a)
Two aspects of the ineffective assistance claim are a claim by the petitioner that defense counsel's cross examination of several witnesses was deficient and there was a failure to secure certain DCF records which would have provided exculpatory information. The court will now discuss these two subsets of the Strickland requirements.
As to the claim of ineffective cross examination, this is rooted in a defendant's Sixth Amendment right to confrontation. One court said that, ". . . the Confrontation Clause of the Sixth Amendment guarantees the right of the accused in a criminal proceeding to be confronted by the witnesses against him. Delaware v. Van Arsdale, 475 U.S. 673, 678 . . . (1986). Thus a criminal defendant has a constitutional right to cross examine a prosecution witness and thereby expose any information relating to the reliability of the witness, Davis v. Alaska, 415 US 308, 315-16 . . . (1974); Brown v. Dretke, 419 F3d 365, 375 (CA5, 2005). If defense counsel's performance regarding cross examination is deficient, the goal sought to be achieved by the Sixth Amendment may be met. The Strickland requirement of showing deficient performance is met where cross examination falls below the accepted professional standards because "absent competent counsel, ready and able to subject the prosecution's case to the crucible of meaningful adversarial testing' there can be no guarantee that the adversarial system will function properly to produce just and reliable results," Lockart v. Fretwell, 506 US 364, 377 (1993). The Lockhart observation assumes, however, that failure to conduct competent cross examination has led to a result which otherwise would not have occurred (the prejudice factor which will be discussed shortly). Also as to cross in particular, there are certain other factors to be kept in mind. The following comments were made in a U.S. District Court opinion and appear to reflect the general law;
Moriarty v. U.S., ID. Conn. 7-28-06:
Ineffective assistance of counsel claims based on inadequate cross-examination are strongly disfavored. Decisions about whether to engage in cross-examination, and if so, to what extent and in what manner, are strategic in nature and generally will not support an ineffective assistance claim. See Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002). The "conduct of examination and cross-examination is entrusted to the judgment of the lawyer," and this court cannot second-guess the decisions of counsel on such matters "unless there is no strategic or tactical justification for the course taken." See United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) at p. 10.
Also see Fabian v. U.S. (E.D.NY 8-28-07) at page 25, cf. Afser v. Murray (E.D.N.Y., 7-25-08) at page 11. However in U.S. v. Villapand, 259 F3d 934, 939 (CA8, 2001) the court said: "We generally entrust cross examination techniques, like other matters of trial strategy, to the professional discretion of counsel . . . some strategy decisions, however, are so unreasonable that they can support a claim of ineffective assistance of counsel."
Also in Whitfield v. Bow, 324 F3d 1009 (CA8, 2003) at page 1017 the court said: "The Eighth Circuit has found constitutionally deficient performance of trial counsel based on ineffective cross examination where counsel allowed inadmissible devastating evidence before the jury or where counsel failed to cross examine a witness who made grossly inconsistent prior statements." The court cited Driscoll v. Delo, 71 F3d 701, 709-11 (CA8, 1995) noting their testifying witness said he saw defendant stab victim but counsel failed to cross with a prior statement made by the witness saying he was not present at the stabbing. The Whitfield court thus said: "A failure to impeach constitutes ineffective assistance when there is a reasonable probability that, absent counsel's failure, the jury would have had a reasonable doubt of the petitioner's guilt," id., p. 1018 (the prejudice factor under Strickland).
(b)
Here, as in Strickland, one of the matters which relate to the DCF records issue is the duty to investigate and the Strickland court at pages 690-91 made the following observations concerning this obviously necessary component of effective representation.
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.
However, regarding the duty to investigate, it should also be noted that our court in Siemon v. Stoughton, 184 Conn. 547 (1981) said that: "failure to conduct an adequate investigation is not a matter of trial tactics." Id., page 557. The court also cited several cases from other jurisdictions which have held "that inadequate pretrial investigation is sufficient to constitute ineffective assistance of counsel." Id., page 556., cf. Other failure to investigate cases leading to conclusions of ineffective assistance are Rowley v. Warden, 2001 Ct.Sup. 9540 (judicial district of New Haven), also see Profitt v. Waldron, 831 F.2d 1245, 1249 (C.A. 5, 1987); Deutscher v. Whitley, 884 F.2d 1152, 1159 et seq. (C.A. 9, 1989); Crandell v. Bunnell, 144 F.3d 1213, 1217 (C.A. 9, 1998). In determining whether an attorney's performance fell below an objective standard of reasonableness the Strickland court noted that the "[p]revailing norms of practice as reflected in American Bar Association Standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ('The Defense Function') are guides to determining what is reasonable, but they are only guides." 466 U.S. at page 688.
The court did note that: "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Indeed the court went on to note "detailed guidelines 'could distract counsel from the overriding mission of vigorous advocacy.'"
As to the requirement placed upon defense counsel to investigate the ABA Standards for Criminal Justice (3d ed.) state the following:
4-1.1 Duty to Investigate (A) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to the facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcements authorities. The Duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.
The relevant portion of the commentary to § 4-1.1 says:
Facts form the basis of effective representation. Effective representation consists of much more than the advocate's courtroom function per se. Indeed, adequate investigation may avert the need for courtroom confrontation . . . The effectiveness of advocacy is not to be measured solely by what the lawyer does at trial; without careful preparation, the lawyer cannot fulfill the advocates' role. Failure to make adequate pretrial preparation and investigation may also be grounds for finding ineffective assistance of counsel.
Two final observations, however, should be made. As noted earlier with ineffective assistance claims in general, where such claims are based on inadequate investigation it is also true that: "The issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel." Gentry v. Warden, 167 Conn. 639, 647 (1975); State v. Ralls, 167 Conn. 408, 432 (1974). On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions: "This measure of deference . . . must not be watered down into a disguised form of acquiescence." Profiti v. Waldron, supra 831 F.2d at page 1248.
(2)
The second prong of the standard used to determine if counsel was ineffective requires that the petitioner show that "there is a reasonable probability that but for defense counsel's deficient representation the result of the proceeding would have been different." Strickland at 466 U.S. page 688. Thus to show prejudice there must be a reasonable probability that because of counsel's deficient performance confidence in the outcome is undermined and also a reasonable probability that the jury would have had a reasonable doubt regarding guilt. Id., pp. 694-95. See also Dupery v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1989).
(3)
In applying the tests set forth in Strickland — (1) deficient performance, and (2) the deficient performance prejudiced the defendant, the court made the following observation regarding these two inquiries:
. . . [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one . . . The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. 466 U.S. at page 697.
In State v. Salazar, 707 p. 2d 944 (Ariz. 1985) the court, following Strickland, said that ". . . we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was ineffective, we examine whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., pp. 945, 946. The court went on to hold, id., page 947, that: "As the defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice, we need not reach the performance question." Also see People v. Kipp, 18 Cal. 4th 349, 367, 956 p. 2d 1169 (1998); 21a Am.Jur.2d, "Criminal Law," § 1225, page 490.
The court will try to apply these general principles to the ineffective assistance claims based on deficient cross examination of the various witnesses cited by the petitioner starting with Kate Brooks.
III
Clearly an important claim advanced by the petitioner is contained in the third part of his thorough memorandum which is met by an equally thorough memorandum submitted on behalf of the respondent. Two claims are made regarding DCF records (1) an ineffective assistance of counsel claim alleging defense counsel failed to request the records; and (2) a Brady claim to the effect that the State or the prosecutor failed to obtain, review and turn over exculpatory as well as impeachment evidence. These claims present complicated issues that are at least factually related. The court will therefore first address other ineffective assistance claims raising issues of whether (1) cross examination of various witnesses was ineffective; (2) advice was ineffective regarding whether the petitioner should testify; and (3) a potpourri of other ineffective assistance claims which conclude the petitioner's brief. The court will first examine the ineffective assistance and Brady violation claims, then insofar as any of these claims are established, will discuss whether prejudice can be established under Brady and Strickland and warranting habeas relief. In discussing the ineffective assistance claims some comments will be directed to the prejudice issue.
A. Ineffective Assistance — Cross Examination of Kate Brooks
Kate Brooks was a friend of the alleged victim in 1994 — 1995 when she lived with her father and was 12 years old. She was called as a witness by the State. Prior to her testifying, defense counsel had filed a motion in limine apparently seeking to bar the State from eliciting testimony regarding the defendant's conduct with her. This was clearly an appropriate motion since it sought to exclude inappropriate other crimes evidence of a highly prejudicial nature; the State was not making a claim under State v. Kulmac, 230 Conn. 43, 63 (1994).
In any event the State represented outside the presence of the jury that it did not intend to inquire into the defendant's conduct with Brooks but only intended to inquire as to his conduct toward the victim.
In conformity to the agreement the prosecutor asked: "Did you ever observe any conduct that struck you as unusual between a daughter and a father?" She answered, "I noticed there was nudity." She was not asked how often she observed this or under what circumstances. It was left for the jury to speculate on. On cross examination defense counsel asked "Now you said there was nudity on the part of Mr. Billington." Brooks answered affirmatively and defense counsel pressed by saying, "Tell me what happened." She said, "He had gone into the bathroom and pretended to get ready to go into the shower and had jumped out on me (the victim) and Jamie naked."
In his brief the petitioner argues his lawyer betrayed his duty to loyalty towards him. He represents the motion in limine filed by defense counsel barred "any testimony by Brooks about her going into the bathroom with petitioner naked or that petitioner had called her into the shower — thus it is argued he violated his duty of loyalty to the client." His trial attorney effectively abandoned him during his cross examination of Kate Brooks, thereby leaving him without trial counsel at all.
Osborn v. Shillinger, 861 F.2d 612, (C.A. 10, 1988) is cited as an abandonment case. There defense counsel at the sentencing phase stressed the brutality of the crimes, described the crimes as horrendous and said his client and co-defendant could be described as "sharks feeding in the ocean in a frenzy; something that's just animal in all aspects," id., page 628. With such abandonment prejudice is presumed, id., pp. 626, 629.
Counsel also cites Breechen v. Reynolds, 41 F.3d 1343 (C.A. 10 1994) and cites to page 1346, footnote 17. The court could not relate the quote to the cite and factually the ineffective assistance claim in Breechen has nothing to do with the particular ineffective assistance claim discussing the cross of Kate Brooks. In Breechen the ineffective assistance claim "is that defense counsel failed to present additional mitigating evidence during the sentencing phase of his trial," id., 1364, there was an "inadequate investigation of possible mitigating circumstances," id. p. 1366.
Petitioner also cites U.S. v. Williamson, 53 F.3d 1500 (C.A. 10, 1995). In that case the habeas petitioner argued that in closing argument, defense counsel conceded his guilt, id., 1510. The court reasoned that if this occurred there is a "breakdown in the adversarial process." The entire record must be examined to determine whether "the attorney remained a legal advocate of the defendant who acted with 'undivided allegiance and faithful, devoted service'" to his or her client, id., p. 1511. If such is found not to be the case, prejudice is presumed. U.S. v. Cronic, 466 U.S. 648, 658 (1984).
In his brief the petitioner seems to advance two arguments each of which would avoid the need to show prejudice under Strickland. There is a claim of conflict of interest and abandonment of such a nature as to indicate an adversarial process did not operate.
It is difficult to understand the conflict argument. It usually arises in situations of multiple representation where, for example, a defense lawyer failed to cross a state witness to diminish a co-defendant's guilt; a co-defendant he or she also represented, cf. Glasser v. U.S., 315 US 60, 72-75 (1942). One can envisage perhaps even a single representation case where it is claimed and proven that defense counsel did not vigorously conduct cross examination of a witness who was an acquaintance or might be a possible witness against another client not involved in the current case and who might therefore become antagonistic to the other client's interest. In Strouse v. Leonardo, 928 F.2d 548, 552 (C.A. 2 1991) the court held a "defendant must identify an actual conflict that impeded his lawyer's representation." There really has not been such an identification here except a broad allegation that defense counsel joined the State to assist it in the prosecution. If we have anything, it is an abandonment claim.
But an abandonment, not a conflict claim, must be closely scrutinized if every type of ineffective assistance claim is not to be relied on to prove it, with the net result that the prejudice requirement of Strickland is obviated. Let us examine what happened here. In fact a motion in limine was filed. The State agreed to it and its question of Brooks and her response did not violate the court's ruling on the defense lawyer's. Brooks did say she observed "nudity," but that was in response to a question from the prosecutor to the effect of whether she had ever observed conduct that struck her as "unusual between a daughter and a father." If question and answer are read together, there was no violation of the motion so there was nothing to object to by defense counsel.
A difficulty in analyzing this case is that defense counsel testified at the habeas trial but never really articulated what may be called his trial strategy in broadly asking on cross for Brooks to explain the nudity response. It was then that she stated the petitioner jumped out nude in front of her also. The cat was out of the bag and defense counsel's cross suggests he was trying to bring out inconsistencies in her testimony. On cross examination she did say upon questioning by counsel that she saw the nudity only once and she did not remember when and she had been going over to the apartment where the victim lived with her father, the petitioner, from some time in 1994 through December 1995; she went there every day.
The court cannot conclude there was ineffective assistance of counsel based on the foregoing, let alone abandonment of the client.
Furthermore, it is difficult to see how this "other crimes evidence" — nudity in front of other children on this one occasion could have been so overwhelmingly prejudicial in light of the fact that the nudity testimony vis-a-vis the victim had already been brought out.
Two other matters must be mentioned. The petitioner argues the admissible testimony of Brooks "would have been dealt with by questioning her credibility," in fact defense counsel sought to "elicit" testimony he had previously excluded. But no evidence was presented to indicate defense counsel had reason to believe Brooks would testify on cross about the petitioner jumping out of the shower in front of not only the victim, but Brooks and another youth. Also there is no discussion or reference to any evidence that could have been used to aid in an attack on Brooks' credibility.
Furthermore, given the strong evidence of guilt, it is difficult to see how defense counsel's questioning leading to Brook's response would have led to a different result as to guilt.
B. Ineffective Assistance of Counsel — Cross Examination of Cassi Knaggs
In his brief the plaintiff, in addressing this claim, states defense counsel "elicited highly prejudicial testimony from Cassi Knaggs that would have otherwise been excluded but for his questions that elicited the specific answers." An interesting concession is made relevant to the prejudice factor under Strickland, however, when the petitioner states that: "This witness was the only witness who could and did testify to witnessing any sexual conduct between petitioner and The victim, especially since The victim herself did not testify. Therefore Knaggs was one of the State's key witnesses."
First the petitioner argues that defense counsel stated to the court that he was unprepared to examine the witness. He said himself he did not have time to investigate her or have a discussion with his client about Knaggs' potential involvement in the case. The case of Higgins v. Renico, 470 F.3d 624 (C.A. 6, 2006) is cited. In that case a non-appearing witness' statement was read into the record at petitioner's trial — he testified Higgins shot the victim. This witness was located and was called to testify by the State. The habeas court noted "inexplicably" defense counsel had not read this damaging witness' prior statements prior to trial. When the State finished its direct, the defense lawyer said he was not ready to cross this witness and declined to do so when only given a brief recess by the judge.
Here the petitioner argues that defense counsel examined the State's file a few days before trial and saw her statement, a prior complaint by Knaggs was not acted on by the State. From this, petitioner argues defense counsel should have realized Knaggs would be called and in any event made no request for a continuance.
But at trial the State did not identify to the venire panel that Knaggs would be a witness. The defense lawyer had asked by motion that all witnesses be disclosed and Knaggs was not revealed as a potential witness. The prosecutor did not deny these representations but only represented he decided to call Knaggs at virtually the last moment.
Higgins is not on point since no cross examination at all was conducted. The real gravamen of the petitioner's claim here is that the cross was ineffective and in fact defense counsel was "unprepared" to question the witness. Two claims then are being made — the cross was ineffective and the cross brought out, in fact, damaging information and counsel was unprepared.
As to the "unprepared" argument, it is difficult to appreciate its relevance to the claim being made. It seems a failure to investigate argument is being advanced. In any event there is no articulation as to how or in what way defense counsel was unprepared or perhaps more to the point, what if any investigation would have revealed relevant to attacking this witness' credibility by way of general impeachment of her testimony concerning sexual acts she said she observed.
The real question is whether the cross examination was ineffective in that the lawyer "elicited highly prejudicial testimony from Cassi Knaggs that would otherwise have been excluded but for his questions that elicited the specific answers —" ". . . The jury was left with more harmful testimony elicited by the defense than the State had even presented" it is argued.
The petitioner, however, does not articulate what this "elicited" testimony consisted of and in what way it went beyond what the State had brought out.
As it was, the State brought out very damaging evidence on direct. Knaggs testified the victim was her half-sister, the petitioner was her stepfather. She lived with them and her mother from when she was four up until 1994. She left the home when she was fifteen. She testified that whenever her mother left the house, she observed oral sex take place between the petitioner and his very young daughter, the victim. It would happen "maybe two or three times a week." On cross defense counsel brought out that she never told anyone about what she had observed, including her mother or teachers. She said that she was frightened by the petitioner, he was a physically abusive person. Defense counsel only went into that when the witness volunteered she did not tell anyone about the abuse for ten years because she was afraid.
Defense counsel, however, brought out on further cross that after she and her mother moved out from the apartment they shared with the petitioner, she kept up a relationship with him — this after characterizing her mother's divorce from the petitioner as "probably the best thing my mother ever did" and describing horrific sexual encounters between the petitioner and his young child, the victim. She even visited him in his Southington apartment with a date. She said she was not afraid of the petitioner during these visits because her date was with her. When she moved to Vermont she and the petitioner would exchange letters. Asked to describe her letters by defense counsel, she testified they said, "I'm doing good, I'm doing okay. I'm homesick." Defense counsel also brought in these letters (one posting was a Christmas card to the petitioner) she never mentioned the sexual contacts she testified about. Defense counsel brought out also that after she and her mother left off living with petitioner, he and the victim to her knowledge lived together in an apartment together but she still did not express concerns to anyone about this.
The cross was not ineffective, it simply could not overcome the force of the damaging and probative evidence brought out on direct. When counsel brought out, as he should have, that Knaggs did not reveal what she saw about the sexual abuse and she stated as a reason her fear; counsel conducted an appropriate cross to dilute the sustainability of any such position.
The court concludes that defense counsel's cross was not deficient.
C. Ineffective Assistance of Counsel — Cross Examination of Officer Shanley
Officer Shanley was called by the State and on direct delivered extremely damaging testimony against the petitioner. That testimony will be discussed at a later point.
The specific claim of ineffective assistance relates to two specific matters. Some background information would be helpful. The petitioner was arrested on a violation of probation charge. On direct the prosecutor did not refer to that charge or why the petitioner was in custody. The prosecutor was laying a factual foundation for the circumstances of the petitioner being in custody and he then asked the petitioner if Shanley was advised of his rights and whether he signed a form to this effect. This was obviously an attempt to present the petitioner's later admission in an acceptable light — yes, the man was in custody, that is why I was able to talk to him and he was treated fairly, after all, he was advised of rights. Earlier on direct the prosecutor made a point of asking Shanley if the petitioner seemed under the influence of any substance — Shanley answered that he did not appear to be so.
(i)
Defense counsel then asked to voir dire Shanley if the rights form was going to be introduced. The prosecutor did not indicate he did not intend to introduce the form and said I have no objection to a voir dire. For some not explained reason, defense counsel did not ask the jury be excused and then proceeded to ask the following open-ended question of a hostile, professional witness:
Q. Officer, could you tell me what this rights form was signed in regard to?
What possible strategic or practical purpose could there be for asking such a question? The answer would appear to be none. Shanley accepted the invitation given to him and responded as follows:
A. On the previous evening I had arrested Mr. Billington on the charge of violation of probation as a result of prior arrests for risk of injury to minors that he had violated.
Procedurally there was error by defense counsel. He should have asked the jury to be excused and inquired where the State was going with the advisement form so as to limit the very type of inquiry and response defense counsel himself engaged in and brought out.
Defense counsel moved the answer be stricken and even for a mistrial. The latter was not acted on and a motion to strike would have been of limited value in erasing Shanley's response.
The State rather unpersuasively in the court's opinion, cites Hogue v. Scott, 874 F.Sup. 1486, 1541 (N.D.Tex, (1977) and Gray v. U.S., 617 A.2d 521, 524 (D.C.App. 1992) to argue that the above actions by defense counsel were not deficient performance. They are referred to support traditional arguments used against these petitions when based on claims of deficient performance — you cannot rely on the 20-20 vision of hindsight, let us not forget that these decisions are often made in the heat of trial, etc. But in Hogue defense counsel offered an explanation for his failure to object during cross examination. They said it was a strong case they did not have much to work with, they did not want to make technical objections that might have antagonized the jury. 874 F.Sup. at pp. 1540-41. Here, as indicated, the error seems obvious. It was initiated by defense counsel and not by prosecutorial questioning. The defense did not respond to or had no way of knowing what was in the offing.
(ii)
The petitioner also cites to another claim of deficient performance which allowed Shanley to testify about inappropriate behavior with Cassi Knaggs which had not been gone into by the prosecutor. After the above trial events, the State elicited extremely damaging testimony about what the petitioner told Shanley during their interview. This is the "I don't remember" response when asked if he had sex with his daughter. After this response, defense counsel made an attempt to try to limit the damage done by the petitioner's response to Shanley's question as to whether he had had sex with his daughter — it was brought out that the petitioner never admitted having sex with his daughter. On redirect the prosecutor noted defense counsel asked what else you talked to the petitioner about in the interrogation — did you talk about "his other daughters and allegations regarding them." Defense counsel rightfully objected in this court's opinion but the objection was overruled on "you opened the door reasoning" — you asked what else did you talk about besides his relation with the victim. Shanley then was permitted to respond to a question by the State that he and the petitioner also talked about "inappropriate actions that he had had with Cassi Knaggs."
Defense counsel cannot be faulted for failure to limit the ambit of the opening the door rule when all he referred to was a certain timeframe and what might have happened in that timeframe. The District of Columbia Court of Appeals had an appropriate observation on this subject in U.S. v. Winston, 447 F.2d 1236, 1240 (1971) where it said:
This business about 'opening the door' is much overused and it carries with it an oversimplication. Opening the door is one thing; but what comes through the door is another. Everything cannot come through the door . . .
The court finds no error in this aspect of defense counsel cross of Shanley. But as noted it concludes there was deficient performance in the previously discussed open ended question about what the advisement of rights form was in regards to, which led to the response concerning the violation of probation arrests.
However, this does not end the inquiry. The court must still discuss the issue of whether the deficient performance led to a result that would not have occurred but for that deficient performance. State v. Salazar, supra. The court will discuss this matter when it has reviewed all the remaining claims of deficient performance including the claim of what can broadly be described as a failure to investigate — here failure to secure the DCF records and pursue inquiries they might have suggested to impeach the accusations made against the petitioner.
D. Defense Counsel Ineffective in Advising Petitioner Not to Testify
A petitioner in a habeas proceeding can raise a Strickland ineffectiveness claim if defense counsel inappropriately and deficiently advises him not to take the stand. Advice on whether or not to testify is examined on the basis of defense counsel strategy, U.S. v. Mullins, 315 F.3d 449, 453 (C.A. 5, 2002) and whether the strategy was reasonable, cf. Joyner v. Director, Virginia Department of Correction, (E.D. Virginia, 2008); Frey v. Scheutzle, 1 51 F.3d 893, 898 et seq. (C.A. 8, 1998). A Strickland analysis is held to apply to such a claim in its two respects: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether counsel's deficient performance prejudiced the defendant, U.S. v. Mullins, 315 F.3d at 453 and 456, Joyner at page 16. Other cases where courts have found no prejudice where counsel advised petitioner not to take the stand include Brown v. Artuz, 124 F.3d 73 (C.A. 2, 1997); Underwood v. Clark, 939 F.2d 473 (C.A. 7, 1991, cf, El-Tabech v. Hopkins, 997 F.2d 386 (C.A. 8, 1996); Rousan v. State, 485 W.3d 576 (Mo, 2001); Rega v. U.S., 263 F.3d 18 (C.A. 2, 2001) sums up the law in this way:
"A defendant in a criminal case has the constitutional right to testify in his own behalf, see Rock v. Arkansas, 483 U.S. 44, 49-51 . . . (1987) and we have held that a trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right; Brown v. Artuz, 124 F.3d 73, 74 (2d Cir. 1997). To bring a claim of ineffectiveness of counsel under the Sixth Amendment, however, a defendant must show not only counsel's deficient performance, but also a reasonable probability that the deficiency prejudiced the outcome," 203 F.3d at page 21 ( Rega cites Strickland at 466 U.S. page 694 for the foregoing).
The foregoing discussion is a predicate to the discussion the court will later conduct of whether the ineffective assistance claim caused prejudice to the petitioner, the second Strickland prong. Although of course the right to testify is a crucial constitutional right, deficiency in legal advice in this regard does not require the application of U.S. v. Cronic, 466 U.S. 648 (1984), which dispensed with the need to show prejudice when certain lawyer errors are committed. At the risk of repetition, as explicitly said in U.S. v. Jordan, (S.D.N.Y., 12/29/08): "To establish a claim of ineffective assistance of counsel based on a violation of his right to testify, a defendant must satisfy the two-pronged Strickland test, including showing a reasonable probability that this testimony 'would have altered the outcome at trial' . . ."
First, of course, the petitioner must meet the first Strickland hurdle. The petitioner makes several arguments as to why the lawyer's advice or lack of advice on his constitutional right to testify was ineffective.
(1) He claims he had wanted to testify and the lawyer did not allow him to do so. At the habeas hearing the petitioner also said the lawyer never explained to him why he should not testify.
(2) He claims he was improperly advised concerning whether he should exercise his right to testify in two respects:
(a) Failure to have the petitioner testify as regards his statement to Officer Shanley that he did not remember if he had sexually assaulted his daughter was ineffective given the circumstances under which it was made and his desire to explain the statement.
(b) Given the fact that defense counsel had already made the jury aware of prior risk of injury charges against him, it made no tactical sense to not have the petitioner testify because of the fact that he would be impeached by three prior felonies for risk of injury.
The court will try to discuss the factors in favor of and opposed to a finding of ineffective assistance of counsel based on the foregoing but not in the above order, however.
(a)
It had come out during cross by defense counsel before the jury on a voir dire of Officer Shanley that Shanley had arrested the petitioner for probation violation as a result of prior arrests for risk of injury to minors. In fact this court has already concluded that this constituted ineffective assistance of counsel. If the petitioner had been called to testify during trial, it is likely that impeachment by these crimes would not have been barred because of remoteness, they occurred within ten years of trial, see Tait's Handbook of Connecticut Evidence. Tait Preston, § 6.33.5, page 369, cf. Label Systems v. Aghamohammadi, 270 Conn. 291, 313-14 (2004). Although it is quite possible, perhaps even likely, that the trial judge would have permitted impeachment by unnamed felony convictions, State v. Geyer, 194 Conn. 1, 16 (1984). But it also certainly true that it would not have helped the petitioner at trial if Shanley's testimony had been embellished in the jury's eyes by learning the petitioner had been convicted of three felonies if he took the stand.
(b)
Another matter briefed in this section the petitioner's brief is that the advice not to testify was particularly deficient in light of the fact that the jury received no explanation from the petitioner as to the circumstances and context of his statement to Officer Shanley that he did not remember when asked if he had sexually assaulted his daughter. When asked at the habeas proceeding how he planned to address the "I don't remember" statement, defense counsel did say he could not really address this in front of the jury. What he really seemed to be saying is that once a statement like this is made, the making of which is not denied and it is presented to the jury by the State — how on earth could it be explained away? And this would be true whether, as the petitioner said at the habeas proceeding, he was tired after working two jobs or the interrogation was lengthy. Shanley said the interview was 25 to 30 minutes at trial. At the habeas hearing the petitioner said the interview was close to an hour but this is not an inordinate amount of time nor does it underline an inordinate temporal discrepancy with Shanley's testimony. As it was, defense counsel during the trial and the cross of Shanley, did get the officer to admit to the jury that the petitioner never admitted to having sex with this daughter or any other inappropriate contact with her.
What was the defense option here — to put the petitioner on the stand to try to "explain" the "I don't remember" response, thus having the jury hear it again while the prosecutor waited with bated breath for his chance to cross examine and as a plus, explicitly have the jury hear reference to three prior felonies? At least to the court to pose the question appears to provide the answer — defense counsel's advice not to testify does not appear to be deficient in the foregoing respects.
(c)
At the beginning of the discussion of this claim the petitioner's brief states that at the habeas hearing the petitioner testified "he had wanted to testify and that he was not allowed to do so." It is also noted the trial court did not canvass petitioner regarding his right to testify. The petitioner also testified he was not aware of his right to testify.
But at the habeas hearing certain testimony presented by the defense lawyer and the petitioner would seem to suggest that they did discuss the option not to testify. The petitioner knew of his right in this regard and simply left it to the lawyer to decide the matter.
The defense lawyer at the habeas hearing discussed his perception that if the petitioner testified, impeachment by his three prior felonies would have been damaging. The lawyer then said: "It certainly would have been very, very crucial. You know we talked about it numerous times. He wanted to testify." This indicates that the lawyer did explain to the petitioner the dangers that would be presented if he testified and implicitly that the defendant was informed of his right to do so.
Interestingly enough, a cryptic comment was made in this regard by the petitioner himself at the habeas hearing. On cross he said that he told the lawyer that he wanted to testify and then added: "If he (the defense lawyer) put me up there, yeah."
One other matter must be discussed. In its brief the State suggests two other reasons supported defense counsel's decision to advise the petitioner not to testify.
The court does not find there was ineffective assistance of counsel as to this claim.
The State in its brief suggests that a reason for not having the petitioner testify was the possibility that a greater sentence could have been imposed if, after conviction, the trial court concluded the petitioner had lied; U.S. v. Grayson, 438 U.S. 41 (1978) is cited. But that is not persuasive, at least to the court — any conviction would have resulted in very heavy time in this case, especially since engaging in the trial process would have forestalled any admission of guilt and thus remorse at the time of sentencing.
The State also suggests that if the petitioner had testified he would assumedly have said that the divorce from the victim's mother was not difficult just as he testified at trial. But at trial the ex-wife and mother of the victim stated the divorce was not difficult so there would have been nothing presented to advance the proposition that the mother or daughter were pressing the charges to get revenge for a nasty divorce, thus impeaching the hypothetical testimony of the petitioner at trial. It should be noted that the last two factors advanced to support the view that the advice not to testified were strategically appropriate, were not offered by defense counsel at the habeas hearing or in his brief. Query whether when conducting a first prong ineffective assistance analysis under Strickland, a court can advance strategic choice reasons to support defense counsel's decision on a particular matter? The court could not find any specific cases dealing with this question but perhaps if the points raised were valid, they could be used to rebut a second prong Strickland claim of prejudice.
E. General Examples of the Ineffective Assistance of Counsel
At the conclusion of his brief the petitioner cites several examples of what he considers ineffective assistance. Not much discussion is given to these claims. The examples raised include the defense lawyers' attempt to introduce letters Cassie Knaggs wrote to the petitioner several years after the events she testified about regarding the abuse of the victim she said she observed. In his brief it is one example, argues the petitioner, of evidentiary arguments that were completely wrong; "the Judge and the Appellate Court noted that the problem was that the letters did not impeach anything."
As petitioner himself, noted in his brief, Knaggs, the petitioner's stepdaughter, was the only direct witness of sexual activity between the petitioner and the young child victim. She testified that he was abusive toward her when living with him which would allow the jury to speculate that Knaggs did not tell anyone about the abuse she witnessed while it was occurring because of her fear of the petitioner. Defense counsel apparently sought to impeach the witness on the theory that here was a person who witnessed terrible sexual abuse by a man she was fearful of but after she moves out of the house she writes numerous letters to him admittedly years after she left the apartment she shared with the alleged victim, her mother, and the petitioner. The trial court did allow the ten envelopes addressed to the petitioner by Knaggs into evidence but not the actual letters so the fact that she wrote him at all even after moved out was recognized to be of some value for impeachment purposes. During the cross of Knaggs by defense counsel, she even volunteered one of the items she mailed to the petitioner was a Christmas card no less. Defense counsel even pushed the boundaries of the court's ruling by getting Knaggs to admit she told him in one of the letters she loved the petitioner — an objection by the State was sustained since the court had ruled the contents of the letters were not to be admitted but no motion to strike the testimony was made.
If anything, even if defense counsel, hypothetically, could have been ineffective in not getting the contents of the letter into evidence but in light of the Appellate Court's ruling and the way the issue was framed by the petitioner, the court will and cannot pursue that inquiry.
A second example of the "ineffectiveness of trial counsel" was his "vigorous" objection to the state's introducing the Miranda rights form through Officer Shanley "when the state never introduced it as a document." This was done by the state prior to eliciting the "I don't remember" statement. In fact the state did offer the signed rights form but the trial court did not allow the form into evidence. It appears apparent that before eliciting the crucially damaging "I don't remember" response the State wanted to show the jury the statement was not made in a coercive setting and the petitioner knew of his right to not make any incriminating statement. As it was defense counsel's objections may have kept the rights form with the defendant's signature on it out of evidence for what that was worth which probably was not much.
Finally, the petitioner makes much of defense counsel's objection at trial to the testimony of the social workers coming into evidence — statements wherein the alleged victim related the sexual abuse endured by the victim. The objection was that to allow the testimony in would breach the victim's privacy. The petitioner argues that this further indicates defense counsel was "not prepared to represent Mr. Billington" and underlines the fact that he "made several arguments that were completely wrong." In fact the State represented it had signed releases from the victim. Also defense counsel said he had "a few issues" concerning the testimony of mental health professions that was about to come into evidence. Defense counsel had only made the "right to privacy" objection when the court said to defense counsel: "I don't want to cut you short, but I have some other questions first before you get to that." (Referring to the production of the release defense counsel asked to be produced.). The court then expressed reservations about the social worker's testimony coming in because defense counsel was deprived of cross examining the victim who earlier in the trial had refused to testify. The petitioner in his brief says the foregoing shows: "In essence the judge stepped in to represent the interest of Mr. Billington" — another example that defense counsel was unprepared to represent the petitioner. A lawyer is not ineffective because a judge in a criminal trial intervenes to make an observation favorable to the defendant on an objection to specific evidence before the lawyer had apparently finished raising all his or her issues. In fact the State and defense counsel both argued to the concerns raised by the judge after the jury had been excused so the legal issues could be addressed. The net result was that the testimony was permitted apparently on the authority of State v. Maldanado, 13 Conn.App. 368, 372-74 (1988); State v. DePastino, 228 Conn. 552, 565-66 (1994). No claim is made that defense counsel's position on the concern raised by the judge was ineffective or inadequate and the court cannot explore an issue not raised or briefed.
F. Claims Regarding (1) the Failure By Defense counsel to request DCF Records (2) the Non Disclosure of DCF Records By the State.
The foregoing claims made by the petitioner as to the DCF records are considered by him as the strongest claims and he addresses them first in his brief.
A. Failure to Request DCF Records
A predicate to this claim is that the DCF records contained exculpatory information. The DCF investigation, it is argued, contained specific denials by the alleged victim that she was sexually assaulted by the petitioner, her father. Their relevance to the defense is therefore obvious if the claim were to be established.
Although the victim did not testify her hearsay statements were let in by way of her telling the treaters at the childrens' home of the petitioner's sexual abuse. Section 8-8 of the Code of Evidence is clear. Its first sentence reads that "When hearsay has been admitted in evidence, the credibility of the declarant may be impeached." The language of the section explicitly contemplates impeachment by prior inconsistent statements. See also Tait's Handbook of Connecticut Evidence, Tait 2 Prescott § 8.61.1 and § 8.61.2, pp. 616-17.
But as to the failure to request the DCF records issue, there are very confusing aspects that present themselves. First it should be noted that defense counsel only explicitly requested Juvenile Court records. They were turned over and found to contain no exculpatory material by the trial or Appellate Court. In the record supplied to this court as attached to the appeal to the Appellate court no such motion was made regarding the DCF records although at the habeas proceeding defense counsel said he had asked for the DCF records and was denied access to them. At another point he said he did not file a motion explicitly asking for the DCF records. He did file what appears to be a standard motion for production and disclosure over a year before trial. It did not specifically request DCF records but in paragraph 8(a) of the motion it did ask for "records held by any State agency which has dealt with any juvenile in connection with this case." This language would seem to only refer to the pending criminal file pending in September 1999 when the motion was filed and not to materials contained in DCF records in 1994-1995 which was the period when DCF was investigating the father-daughter-family situation as a result of the petitioner's arrest for risk of injury involving his conduct with other minor females.
Another confusing aspect to the problem presented at least to the court, is the fact that in the habeas proceedings counsel for the petitioner said he in fact had certain DCF records which he received from appellate counsel for the petitioner; trial counsel, who is the subject of this ineffective claim, did not represent the petitioner on appeal. Where else could appellate counsel have gotten the records except from trial counsel's file? At the habeas hearing trial counsel said the lawyer who represented the petitioner in juvenile court turned over everything he had to him. But he could not say whether the records he had in fact originated from the DCF file.
In any event the important questions remain of whether the DCF report contained exculpatory information. Habeas counsel was insistent that the DCF records he had obtained contained extremely exculpatory information but he did not feel at liberty to disclose the details of this information without a court ruling on the propriety of the contents of the records being disclosed. This court in fact reviewed the DCF records and turned several documents over to both counsel on the grounds that they contained exculpatory information.
The exculpatory information involves reports by DCF employees that the victim in this case denied any sexual abuse by the petitioner, her father. Also some of her reported behavior could be argued to be inconsistent with any notion that any such abuse had occurred. She indicated to DCF that she wanted to live with her father. The behavior aspect of the contents of the DCF records is briefly alluded to in the petitioner's brief; the main focus of the ineffectiveness claim is based on the position that failure to secure request the DCF records prevented the appropriate impeachment of the alleged victim's hearsay narrative of sexual abuse by her father, the petitioner. All of this information was gathered several years before the trial and the arrest in September 1999.
To the court it is ultimately irrelevant whether defense counsel's failure to properly investigate by securing the DCF records was ineffective in that they would have revealed exculpatory information or whether defense counsel was ineffective because in fact, he had some or all of the exculpatory portions of the DCF records and did not use the records for impeachment. The court will address both these scenarios under the ineffective assistance claim.
It is true, however, that this habeas record is incomplete in the sense that the claim was framed solely in term of a failure to investigate; the DCF records in the file turned over to habeas counsel by appellate counsel and thus presumably known to trial counsel were not introduced in this proceeding to determine whether the DCF records and their exculpatory material were merely cumulative of what defense counsel "might have" had.
First, however, a predicate argument by State must be addressed. The State argues that the exculpatory information in the DCF records is merely hearsay. Some DCF employee is transcribing what the alleged victim told that person regarding her denial of sexual abuse by the petitioner. Comments on behavior which were also exculpatory would suffer from the same characterization. What possible exception to the hearsay rule could apply? If DCF records are categorized as business records under § 52-180 of the general statutes and § 8-4 of the Code of Evidence which incorporates the statute the court should not allow reception of the alleged victim's hearsay statements into evidence just because they were contained in a business record it can be argued. For any portion of the record to be admissible: "the business record must be one based upon the entrant's own observations or upon information transmitted to him (sic) by an observer whose business duty it was to transmit it to him," Sheary v. Hallock's of Middletown, Inc., 149 Conn. 188, 195 (1962). The victim in this case had no business duty to transmit her comments to DCF. Query, however, whether these statements would be admissible even though garnered from a person with no duty to report because they fall within the exception noted in State v. Palozie, 165 Conn. 288, 295 (1973). There the court said such statements in a business record are admissible if they fall within another exception to the hearsay rule — can it be argued that the victim's statements are the admissions of a party opponent? See discussion on Tait Handbook of Connecticut Evidence, Tait, Prescott, § 8.2:8.7(c), page 551.
The State is the party, the victim is not a "party opponent" as that term is traditionally understood.
But should form exalt itself over substance? The State in effect vouched for the victim, it called her to testify, it presented her hearsay incriminating remarks to State employees at DCF. The victim's exculpatory statements would not come in for their truth as such but only because they showed inconsistency — i.e., the very fact that they were made. This must be added to the fact that they were taken down by a DCF worker who in effect had a duty to record the statement and in that sense was acting as a scribner.
Secondly the respondent defendant argues that for purposes of this habeas petitioner the DCF records were never entered into evidence so that the petitioner cannot argue either the ineffectiveness claim or assuming ineffectiveness prejudice cannot be shown — i.e., the contents of the records are not before the court. There is certainly technical merit to the State's claim and both these lawyers certainly leave no stone unturned. But the issue before the court concerns important federal rights under the sixth amendment; the court is reluctant to enforce state procedural rules to avoid having to address questions under Strickland.
The court in this case examined the DCF records and turned over to both the State and petitioner's those portions of the DCF records it considered to contain exculpatory information. The court put them in an envelope and sealed the envelope. Counsel for petitioner should have had these records marked or the court could have marked them as a court exhibit. In any event the court will now mark this envelope with the documents it turned over to both sides as a court exhibit for an Appellate Court determine (1) their admissibility on the issues presented and (2) if admissible the validity of the petitioner's position regarding the records. No party is prejudiced by this approach — could the State at the habeas hearing have successfully objected to the documents being marked as evidence or marked for identification or marked as a court exhibit? The questions seems to provide the obvious answer of no — that being the case it is difficult to understand why this court should ignore their contents in deciding the viability of an important federal right.
(i)
Moving to the merits of the ineffective assistance claim under Strickland regarding these records, first the court should say that the DCF records, identified as the records it turned over to the counsel, did contain exculpatory information. The records revealed the alleged victim indicated she wanted to go live with her father when the parents' marriage dissolved after an allegedly long history of abuse. This came out in testimony by the ex-wife at trial so this information was cumulative but the information was still exculpatory and may have had more force if introduced as part of the DCF records produced by contacts with DCF staff. More importantly the records contain statements that the victim denied sexual abuse by the father. The State's attempt to argue that the victim's denials of abuse were not "substantiated" in the records is difficult to follow. The fact is the denials were made and because the records as the State argues "do not identify when, and to whom" the victim made her denials goes perhaps to their weight not their admissibility.
(ii)
Where does all of the foregoing leave us? First, not knowing what if any DCF records were available to defense counsel it is difficult for the court to conclude that he was ineffective in investigating the case. If, hypothetically he did not have in his possession the exculpatory records, counsel was remiss in not trying to secure them for an in camera review by the trial court just as that court did at trial regarding the Juvenile Court records and this court did at the habeas trial. The petitioner testified that DCF removed the victim from his home in January 1995, he knew she was questioned by the police and DCF but he was not charged with sexually abusing the child at that time. These charges were only made some four years after removal of the child from the petitioner's custody. A minimally thorough interview with the client would have brought this information to counsel's attention and at the habeas proceeding counsel said he knew DCF had been involved and said "I think DCF may have stepped in to remove the child from the home (of the father) for a variety of reasons." If he did not have the DCF records it was ineffective in a case of this type not to have tried to secure them for an in camera review. If he had done so, the records and their exculpatory information would have been available for use at trial.
If, in fact, he had the exculpatory records in his possession — which this court suspects is the case since counsel's able habeas lawyer had received DCF records from petitioner's appellate counsel and stated they contained exculpatory information — then it was ineffective for defense counsel not to have used them at trial.
What possible reason could there be for not using this material for impeachment purposes? As in many cases of this type there was no evidence of the sexual abuse apart from the victim's own statements to treaters. The corroborating testimony of Brooks and Knaggs only underlined the need for some response to a strong prosecution case. Or to put it another way was there any reason why, having this information, a defense lawyer, given the circumstances of the case would decide that tactical necessity militated against bringing it before the jury? The court cannot think of one. And the rubric of great deference to trial counsel's tactical decisions cannot be used to subvert the important federal right to effective assistance of counsel — either as to securing the records or having them and not using them.
As indicated the court will discuss the prejudice aspect of Strickland at the end of the decision.
B. Brady Violation Regarding DCF Records
The court has determined that the DCF records contained exculpatory material; in fact it reviewed the DCF file and turned what it felt were exculpatory materials to both counsel. A claim is made that requirements imposes on the prosecution by Brady v. Maryland, 378 U.S. 83 (1963) have not been met and that this requires that the petition be granted. This is not a Strickland claim but the court will analyze the claim because the third factor in Brady which will be set forth shortly bears resemblance to the second or prejudice prong of Strickland — such a strong resemblance that it is identical.
First the court will discuss generally the requirement of Brady and what it conceives to be the appropriate analysis when it is claimed to apply.
The requirements of Brady are explicit. The State has a duty to disclose exculpatory evidence. Impeachment evidence also falls within the Brady rule. The court in Giglio v. US, 405 U.S. 150, 154 (1972) said that "when the reliability of a given witness may be determinative of guilt or innocence nondisclosure of evidence affecting credibility falls with the general rule (of Brady)," see also State v. Skakel, 276 Conn. 633, 700 (2006); Tate v. Wood, 963 F.2d 20, 25 (CA2, 1992). The court in Demers v. State, 209 Conn. 143, 150 (1988) quoted from State v. Milner, 206 Conn. 512, 539-40 (1988) to the effect that;" To establish a Brady violation the defendant bears the burden of demonstrating (1) that the prosecution suppressed evidence (2) that the evidence was favorable to the defense and (3) that it was material." As to this materiality requirement, the court in discussing the Brady rule in State v. Rasmussen, 225 Conn. 55 (1993) said that "evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different, " id., page 92, quoting from U.S. v. Bagley, 473 U.S. 667, 682 (1985). In fact in Bagley itself the court applied the Strickland v. Washington test to determine, whether under Brady, the materiality test had been met — was there a reasonable probability that the outcome of the proceedings would have been different or in another formulation, that there is a reasonable likelihood that testimony, for example, which is made unavailable could have affected the judgment of the trier of fact, see Bagley at 473 U.S. pages 681-82. A reasonable probability then is a probability sufficient to undermine confidence in the outcome, Adams v. Aiken, 965 F.2d 1306, 1314 (C.A. 4, 1992), also see Kyles v. Whitley, CT Page 4360 514 U.S. 419, 435 (1995). This is the Strickland test applied in the Brady setting.
Two other factors must be mentioned before the general principles being discussed are applied to the facts of this case. In this regard Demers v. State, 209 Conn. 143 (1988) indicates by referencing and quoting federal case law that: "It is irrelevant whether the State (i.e, the prosecutor) acted in good faith or bad faith in failing to disclose the evidence; negligent suppression may be sufficient" and where "evidence is highly of a defendant's innocence is in (the prosecutor's) file, he should be presumed to recognize its significance even if he actually overlooked it," id., at page 151.
But the question become who is the State, does the duty of disclosure lie only with the prosecutor's office regarding the duty to disclose exculpatory information? Relying on several federal District Court cases and Court of Appeal decisions Demers answers no, and quotes from a federal case to the following effect: "The State's duty of disclosure is imposed not only upon its prosecutor, but also on the State as a whole, including its investigative agencies. Therefore, if the (exculpatory materials) were held by the . . . police department we could be compelled to conclude that, constructively, the State's Attorney had both access to and control over the documents," 209 Conn. at page 153.
Another factor important to a Brady analysis was set forth in State v. Dolphin, 195 Conn. 444, 455-56 (1985) where the court said: "Evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady," also see State v. Johnson, 14 Conn.App. 586, 598 (1988). As said by the court in U.S. v. LeRoy, 687 F.2d 610, 619 (C.A. 2, 1982): "The rationale underlying Brady is not to supply a defendant with all the evidence in the government's possession which might conceivably assist the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the government." But even this language is tempered by the discussion on State v. Skakel supra:
. . . it is well established that "evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence . . ." The rationale underlying this exception to the state's disclosure obligation under Brady is obvious: Brady is designed to assure that the defendant is not denied access to exculpatory evidence known or available to the state but unknown or unavailable to him . . . It is not intended either to relieve the defense of its obligation diligently to seek evidence favorable to it or to permit the defense to close its eyes to information likely to lead to the discovery of such evidence. (emphasis by Skakel court).
The court will now try to apply the foregoing principles to the facts of this case.
The court has already concluded the DCF records contain exculpatory information and certainly materials that could have been used to impeach her hearsay accusations. The court will therefore concentrate on the last two factors critical to the application of the Brady rule.
(i)
The question becomes what if any bearing does the fact that the DCF records were prepared by DCF personnel not the police or investigators in the State's Attorney's office have on Brady obligations. The previously referred to quote from Demers generally says none but the issue must be examined in more detail. The petitioner relies heavily on Provost v. Commissioner of Corrections, 2003 Ct.Sup. 13793 [ 34 Conn. L. Rptr. 180], a lengthy and excellent opinion by Judge Rittenband. In that case the petitioner was charged with Sexual Assault in the First Degree. The court found a Brady violation because exculpatory information from the police and DCF records had not been made available to defense counsel. The petitioner's trial took place in November and December 1995 and on November 8, 1995 the victim told a DCF worker that two other men had sexually abused her. In closing argument the State made a point of saying where else could have this six-year-old have learned of sexual abuse knowledge but from her contact with the defendant petitioner. The defense could not argue, as it had the right to do, that the child could have been confused as to who assaulted her. The court relied on Demers to hold that DCF "is an investigative agency of the State." It then referred to various provisions of § 17a-28 of the general statutes. Subsection (f) says that the commissioner "upon request" (whatever that means) shall promptly turn over to the State's Attorney in the district where any abuse allegedly occurred their records for the purpose of "investigating or prosecuting child abuse." Language in subsection (e) also says a state's attorney shall disclose to the defense in a criminal prosecution without any need for a court order exculpatory information and material contained in a DCF record. Subsection (a)(5) defines "records" to mean "Information created or obtained in connection with the department's child protection activities."
In Provost itself the court found a Brady violation because when the prosecutor testified at the habeas trial he stated "I don't think I subpoenaed any DCF records at all in this case." The pertinent DCF records were in the local police files and the court concluded that once he became aware of November 8, 1995 allegations made to the social worker he, the prosecutor had a duty to seek out these reports and then, if there was anything exculpatory, as there was, turn them over to (defense counsel).
This case and its facts, at least technically do not fit into the foregoing scenario. Here the DCF investigation took place several years before the trial and was not specifically directed or primarily concerned with sexual abuse of the victim. Two other minors were abused and the investigation apparently was aimed at determining whether the present victim, the petitioner's daughter was in danger of being abused given those allegations. The exculpatory information arose in the context of that DCF investigation. There is no indication here that the State knew of the exculpatory contents of the DCF reports, had the DCF records, in its possession or had requested them. Did DCF having conducted an investigation a few years before the petitioner's arrest have an independent duty to turn over the DCF records in light of the existence of exculpatory material in the file that might, from its perspective, be hypothetically used in the petitioner's prosecution for allegedly molesting his daughter? Provost did not directly address this issue although the broad language of Demers quoted by the court might suggest it. But then what does the "upon request" language in § 17a-28(f) mean? And if it means in Connecticut no Brady claim can be made for DCF's failure on its own to turn over these records, query whether the federal constitutional rights guaranteed by Brady can be defeated by such language in a state statute. Perhaps it could be argued that the trial prosecutor here knew or should have known of the DCF records and the possibility of their containing exculpatory materials but unlike the situation in Provost the state's attorney was never called to testify in this habeas proceeding.
(ii)
Perhaps more to the point the second factor discussed by the court presents more direct problems for the petitioner in making a Brady claim
The petitioner and through him, his trial counsel, knew of the DCF investigation in this case and were well aware of the fact that although the victim was removed from petitioner's custody he was never prosecuted for any crime against the victim as a result of that investigation. The previously quoted language of Skakel is applicable. The foregoing indicates that nothing was hidden from the petitioner by the prosecution or any arm of the State and that armed with the foregoing the defense could and should have explicitly requested the DCF records with the same in camera review thereof which the trial court made of the Juvenile Court records and this court made of the DCF records during the habeas proceedings.
Furthermore much of the exculpatory information in the DCF report was known to the defense. The child opted to live with her father when he divorced the mother despite the fact that the child later accused him of sexual abuse. The petitioner's ex-wife testified to this at trial. Also at his probation hearing where the petitioner was represented by trial counsel he testified that his daughter visited him several times at work although previous orders on his probation for risk of injury barred such visitation — from his testimony it could be deduced that his employers knew of the visitation.
Finally, at least for the court, there is some confusion about where habeas counsel could have gotten DCF records and any other official reports containing what he represented as exculpatory information including denials by the victim that the petitioner assaulted her. Apparently they came from petitioner's appellate counsel but where else could that lawyer have gotten them but from trial counsel.
It is difficult to see how, under these circumstances a Brady argument could be made even before reaching the materiality issue.
However, in the next section the court will discuss materiality even assuming a Brady violation and prejudice under Strickland for ineffective assistance, which as indicated, are one and the same.
IV. THE PREJUDICE FACTOR UNDER STRICKLAND AND MATERIALITY UNDER BRADY
The court concludes that given the ineffective assistance claims it found to be proven and even if all the petitioner's ineffectiveness claims were to have been established the necessary prejudice under Strickland has not been proven; also even if the petitioner were adjudged to have proven a violation of his rights under Brady the court also concludes the necessary materiality has not been shown to justify relief under that case which the court for reasons previously stated is analogous to the prejudice requirement when ineffective assistance is found under Strickland. Also even if these sets of claims were considered to have been established and are viewed together, habeas relief should be denied.
Two people testified who were employees of the Children's Home of Cromwell. The first witness called was a Tony Gibson. He had a Masters in Marriage and Family therapy and is licensed by the State. Gibson provided the victim with mental health care after she arrived at the facility in May 1998. She told Mr. Gibson of sexually inappropriate games her father had her play — hide and seek which resulted in gradual stripping if she was found. The victim described oral sex and rubbing of body parts occurring on a frequent basis. She also described sexual abuse by an uncle. The petitioner's sexual abuse occurred between the victim's fourth and eleventh year. She was referred to the facility for self-injurious behavior, suicidal attempts and ideation. She did not disclose the sexual abuse until August 1998.
Another employee of the Children's Home testified, Asha Patlikh. He also has a Masters in Marriage and Family Therapy and is a clinician and therapist. He also treated the victim. He basically testified as to the same sexual abuse Gibson related for the same age period, four to eleven. He treated the victim under the supervision of a psychiatrist.
Damaging corroborating testimony was testified to by the half sister of the victim. She stated, as previously indicated, that when she lived with the petitioner, the victim and her mother she observed numerous episodes of sexual abuse for over ten years. Knaggs testified she never told anyone about this abuse and kept up a relationship with the petitioner after she moved out of the apartment. She corroborated the victim's story also as to another matter testified to by the therapist by saying she observed the petitioner give the victim candy and money after the sexual contact which included oral sex and intercourse.
The defense called two witnesses, a babysitter and a Michelle Wetsky, another daughter of the petitioner who lived in the apartment with Knaggs, the petitioner, her mother and the victim from October 1989 to July 1990. She was adamant that she never observed inappropriate sexual activity between the petitioner and the victim.
However, Knaggs' testimony of inappropriate sexual activity was corroborated by a Kate Brooks who was a school friend of the victim. She observed the petitioner jump out of the shower nude in front of her and the victim; at the time they were school children, in Junior High. She also observed the petitioner make "tongue gestures toward oral sex" to the victim and dared her to remove her shirt. She observed the petitioner touch the victim on the buttocks. Brooks eventually told her mother and the police about these events in 1994. No motive was presented as to why this young woman would give false testimony.
A William Roberts testified; at the time of trial he was serving a sentence for sexual assault. He testified for the State but said no promises were made for his testimony. He stated he was a participant in what might be called the strip hide and seek "game" the child was made to participate in at a time when according to Roberts the victim was younger than thirteen. The game ended when everyone was naked. Roberts was a felon and testified to being mentally ill and on medications. But the only attempt to rebut his story was evidence at the habeas proceeding that the bed he said he hid under during this "game" held some ten years before was too close to the floor for him to hide under.
The most damaging evidence against the petitioner, however, was his response to Officer Shanley's question as to whether he had even sexually abused his daughter. His simple response was "I don't remember." At the habeas hearing the petitioner said the police interview went on for something over an hour, even if believed not an extra ordinary length of time, he was not under the influence of anything but was extremely tired from working two jobs. The officers' questions were repetitious but he was not subjected to any physical abuse.
The court cannot envisage a more incriminating response.
Thus even if the defense lawyer was ineffective in failing to place before the jury the denials by the victim in the DCF records, or the court was incorrect in its analysis of the manner in which the cross of Brooks, Knaggs, and Officer Shanley was conducted the outcome would, in its opinion, have not been effected by these errors. As discussed the jury was told that the victim wanted to live with her father by the ex-wife at the time of the divorce after years of what is alleged to have been sexual abuse. The jury must have had some inkling thereby that like a denial this could be considered indicative of the absence of abuse. The errors as to cross were not critically prejudicial to the defense for the reasons stated. In its discussion of the ineffective prong under Strickland some of the comments went to the prejudice prong and the court would rely on that discussion also.
In the last analysis the "I don't remember" statement in the face of accusations of abuse of one's daughter, however, is simply inexplicable. And any proferred testimony by the petitioner at trial could not explain away the damaging import of this statement.
The habeas petition is denied.