Opinion
No. CV03-0475012S.
November 30, 2006.
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In a trial of his habeas corpus petition, the petitioner states that there is but one issue for the court to consider. This is whether certain decisions trial counsel made fatally affected the trial and the subsequent appeal.
The decisions referred to dealt with counsel's response or lack of response when the testimony of certain state witnesses allegedly constituted "vouching" for the victim's testimony.
These encounters occurred during the petitioner's trial in Waterbury Superior Court in August 13, 2001. After conviction of sexual assault in the first degree, risk of injury to a minor, and intimidating a witness, a total effective sentence of 25 years, execution suspended after 23 years and 35 years probation was levied. His direct appeal was denied in State v. Carniero, 76 Conn.App. 425 (2003).
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra.)
The petitioner's claims must be evaluated in light of these standards
DISCUSSION I
To evaluate the petitioner's arguments, it is necessary to examine the testimony in question, involving four prosecution expert witnesses. Further, in this process, one must be mindful of the situation confronting a criminal defense lawyer in cases where a child is the victim of a sexual assault and the experts called by the state are seen by jurors as neutral parties who either treated or diagnosed the complainant. They are not apt to be seen as "hired guns" for one side or the other.
In this case, trial counsel had consulted with his own expert in the field who felt the victim had displayed all the symptoms of abuse. Thus, he could go easy in his approach to these witnesses, or pick and probe and hope that he could raise doubts about their objectivity. CT Page 21991
A.
Dr. Elizabeth Donohue, a clinical psychologist, was called by the state. She had conducted an interview of this child victim in conjunction with the Department of Children and Families and the local police department. This was done with only the doctor and the victim present. The video-taped interview was observed by others via a one-way glass mirror.Trial counsel had just elicited an answer from this witness which raised the question of just when this sexual assault had occurred. Now, he could press on or leave things as they were. His decision to press on produced a question which the petitioner now cites as reflective of ineffective assistance.
Counsel's question was ". . . In interviewing somebody with cognitive impairments, do you make any kind of assessment of their ability as a historian?" The court does not see this as eliciting a "vouching" response but rather as challenging the witness to explain the basis for his conclusions. It also assured him that a witness harmful to the defense was made to explain her testimony and its basis. The net result was her answer to the effect that this child victim "struggled with placing things in time," a response cited by the petitioner as an example of trial counsel's inadequacy!
Finally, the petitioner refers to the re-direct examination, where, after the witness had described her concerns and attempted to clarify the victim's statement, she was asked if there was anything else in the interview that gave her in doubt about his disclosure. The response was "No."
The court does not consider this as typifying the "vouching" our courts have condemned, especially when a prior question and answer described the confusion over when the offense occurred.
Finally, the court notes that the petitioner's expert at the habeas trial did not refer to the testimony of Dr. Donohue as material that could have been considered "vouching." She referred only to the three witnesses the court will address in subsequent sections. Even of greater significance is the fact that this petitioner's expert also took the direct appeal after his conviction. The questions and answers discussed above were not included in the claim addressing testimony which, she claimed, should have been stricken by the court. State v. Carniero, supra, at 428. CT Page 21992
B.
The petitioner also cites the testimony of Rosalie Guest, the child's therapist, as an example of counsel's ineffective assistance. This exchange, at page 44 of the trial transcript of October 3, 2001, contains the "vouching" testimony:
Q So the only way you know that he was sexually assaulted is because he said to you he was?
A Yes, I believed him. It was over time and consistent.
This hardly strikes the court as a bomb blast! Obviously, the witness believed him or she probably wouldn't have been there and one doesn't envision jurors hearing this statement and deciding the case on that basis. And, this testimony was addressed by the trial court who gave a curative instruction.
Trial counsel explained his tactics with respect to this and the other state witnesses. He had consulted with an expert in this field from Harvard University. This expert told him the victim displayed all the symptoms of an abuse victim. Yet, he felt these treaters had been fooled and the defendant could only prevail if they were questioned aggressively.
The court finds the answer elicited more favorable than not, for the witness was now saying the victim's words were all she had to rely on. And, with the curative charge to the jury, this "opening the door" approach by counsel does not loom large in the end result.
C.
Dr. Alok Bhargava, a child neurologist, testified for the prosecution and some of trial counsel's attempts to probe into his conclusion and some of his explanations of his observations are cited as examples of counsel letting him "vouch" for the child victim's story.
Counsel indicated he felt it preferable to leave the comments stand rater than highlight them. He questioned whether the witness's responses were "vouching" and felt his objection would be overruled. Counsel also felt this was in a dubious area where constancy of accusation elements existed.
The court questions whether the witness was "vouching" for the truthfulness of the victim. Any cross examination of the expert as to his testimony would entail such risks, and counsel could have been criticized had he not attempted to so question this witness.
As for the petitioner's claim that counsel should have filed a motion in limine directed at the anticipated appearance of these experts, this presumes that the motions would be granted, that the elicited testimony would be "vouching," that the court would agree, and that at trial there would be no unexpected answers or explanations offered.
A re-reading of this witness's testimony does not convince the court that this represents a significant departure from reasonable professional assistance standards.
D.
The petitioner also includes the testimony of Kimberly Massey, a counselor at the hospital unit where the victim was treated as an example of counsel's alleged deficient performance.
Again, the petitioner's allegations are of a general nature, but specific reference is made to the testimony at page 122 of the August 3, 2001 transcript. This was a witness whom trial counsel indicated he planned to attempt to impeach because of her prior relationship with the victim.
At page 122, the state sought to rule out any defense probe suggesting the victim was manipulative or seeking attention. The witness responded with an explanation that tended to justify her answers. One could argue the questions here could have been objected to, but the basis for this expert's testimony would certainly be relevant, particularly with the defense attempting to show that the victim had apparently developed an attachment to this counselor.
Again, it appears trial counsel's decision to question the witness and her objectivity is being questioned. The sum total of all the allegedly improperly developed "vouching" testimony is nominal at best.
E.
The petitioner also includes in his allegations of ineffective assistance of counsel the fact that much of the testimony elicited from these experts was referred to in the prosecution's closing argument.
The court has read the transcript references and concludes they were just that — references and references that failed to lend significance to the primary testimony. They could be anticipated in view of the defense efforts to discredit these witnesses.
CONCLUSION
It is the conclusion of the court that defense counsel's tactics were reasonable under the extreme circumstances confronting him.
As for the issue submitted to the court, the court has examined the decision of the Appellate Court in the petitioner's direct appeal. There in assessing this same disputed testimony under the plain error doctrine, the court said:
We conclude that, in this case, the admission of the testimony of Bhargava, Guest and Massey does not amount to plain error. Assuming, without deciding, that the testimony was improper, "[w]e do not agree that the admission of [the] testimony undermined the fairness or integrity of the trial afforded to the defendant. Further we see nothing in the record that leads us to conclude that the verdict constituted manifest injustice to the defendant or will lead to diminished confidence in our judicial system." Id. (No plain error in admission of expert testimony vouching for credibility of sexual assault victim).
State v. Carniero, 76 Conn.App. 425, 431 (2003).
As noted above, the court does not find counsel was ineffective, rather he rendered effective assistance in difficult circumstances.
The court adopts the conclusion of the Appellate Court as to the admission of this testimony. The petition is denied.