Opinion
CV134005197
11-13-2015
Jesie Lee Coger (Inmate #384019) v. Warden
UNPUBLISHED OPINION
CORRECTED MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Jessie Lee Coger, brings this petition for a writ of habeas corpus claiming that his criminal defense attorney provided him ineffective assistance in violation of the state and federal constitutions, and seeking to have his convictions vacated. Specifically, the petitioner claims, in his Amended Petition filed April 21, 2015, that his right to effective legal representation was denied in that his counsel, attorney James Pastore, committed a number of errors at trial and as part of the plea bargaining process.
The petitioner claims that his right to effective legal representation at trial was denied in that his trial counsel, James Pastore, was constitutionally deficient at the petitioner's trial in the following ways:
a. He did not file a motion for bill of particulars;
b. He did not conduct an adequate factual investigation;
c. He did not adequately prepare and present a defense for the petitioner;
d. He did not retain, consult with and present the testimony of a forensic psychologist, forensic psychiatrist, or other mental health professional with an expertise in investigating and evaluating child sexual abuse allegations;
e. He did not present alternative innocent explanations for the sexual abuse allegations made against the petitioner, and did not adequately present evidence that contradicted, refuted or otherwise challenged the complainant's allegations;
f. He did not adequately challenge the State's investigation re: innocent explanations;
g. He did not present evidence of a biased and/or incomplete investigation;
h. He did not adequately cross examine, impeach or otherwise challenge the testimony of the complainant;
i. He did not adequately challenge the testimony of B.T.;
j. He did not adequately challenge the testimony of I.C.;
k. He did not elicit favorable testimony during his cross examination of Nikko S.;
l. He did not adequately challenge the testimony of Charlotte Schmid;
m. He did not properly challenge the testimony of Janet Murphy;
n. He did not properly challenge the testimony of Lisa Melillo;
o. He did not sufficiently counsel the petitioner re: his decision to testify and did not properly prepare him for his testimony; and
p. He failed to present the testimony of Fred Direnzo.
Prior to the close of his case-in-chief, petitioner's counsel orally moved to amend the petition to conform to the evidence adduced. Over the respondent's objection, the Court granted the motion, to include the following additional claims.
q. Attorney Pastore did not engage in plea negotiations; and
r. He did not properly advise the petitioner of the advisability of engaging in plea negotiations.
The respondent denies the allegations. The court heard the trial of this matter on the merits on September 1, 2015. The petitioner called as witnesses himself, attorney Pastore, and retired Detective Edward Leary. Among the several listed witnesses not called at the habeas trial were Nikko S., Charlotte Schmid, Janet Murphy, Lisa Melillo, Dr. David Mantell and Fred Direnzo. At the habeas trial there was no mention of Mr. Direnzo in the petitioner's case. The petitioner entered into evidence a number of exhibits. The respondent called no witnesses and offered no exhibits. Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.
I
Procedural History
On June 15, 2011, in the Fairfield judicial district, in the matter of State of Connecticut v. Jessie Lee Coger, docket number CR10-0247146, following a jury trial, the petitioner was convicted of Sexual Assault first degree, in violation of Connecticut General Statutes § 53a-70(a)(2), three counts of Sexual Assault second degree, in violation of General Statutes § 53a-71(a)(4), two counts of Sexual Assault fourth degree, in violation of General Statutes § 53a-73a(a)(1)(E), and one count of Risk of Injury to a Minor, in violation of statute § 53-21(a)(1). On September 22, 2011, the trial court, Kavanewsky, J., sentenced the petitioner to a total effective sentence of 25 years of incarceration, execution suspended after 18 years to serve, five years of which is mandatory and non-suspendable, followed by 20 years of probation.
On November 1, 2011, the petitioner appealed the underlying criminal judgment to the Connecticut Supreme Court, where it was transferred to the Appellate Court. On February 18, 2014, the Appellate Court affirmed the conviction. State of Connecticut v. Jessie L.C., 148 Conn.App. 216, 84 A.3d 936, cert. denied, 311 Conn. 937, 88 A.3d 551 (2014). On January 23, 2013, the petitioner initiated this matter by the filing of his petition for a writ of habeas corpus.
The following findings of fact and conclusions of law by the Appellate Court are relevant to a resolution of the instant matter.
The jury reasonably could have found the following facts. The defendant is the uncle of the victim, N, and her older brother, K. The defendant is also the adoptive father of S, who is N and K's younger half sister. N, K, and S lived with the defendant and his wife, B, on the second and third floors of a two-family home. On the second floor, N and S shared a bedroom, and the defendant and B slept in the dining room, which they had converted into a bedroom. K's room was on the third floor.
At some point, the defendant and B separated and B moved into the apartment located on the first floor of the house. Accordingly, N, K, and S were living solely with the defendant. The first incident of sexual abuse occurred when N was ten years old. One day, the defendant awoke N from a nap and told her to go sleep in his bed. After falling asleep in the defendant's bed, N woke up with the defendant's penis inside of her vagina. The defendant apologized and told N that he was dreaming and thought that she was B. He instructed N not to tell anyone about the incident.
When N was eleven and twelve years old, the defendant sexually assaulted her about two to three times per week, although he did not penetrate her again until she was thirteen years old. The majority of incidents occurred at nighttime; however, the abuse sometimes occurred during the daytime prior to the defendant's leaving to work the night shift. Generally, the defendant would make sure that S and K were distracted by television or video games, and would then tell N that he needed help relieving his stress. N would pull down her pants and underwear and lie down on the defendant's bed. The defendant would rub his penis against the outside of her vagina until he ejaculated.
When N was approximately twelve or thirteen years old, she began sleeping in the defendant's room every night--the defendant had told her that she could no longer share a bed with S because the bed squeaked and disturbed the downstairs neighbors. When N was between the ages of thirteen and sixteen years old, the defendant sexually assaulted her every day, and sometimes multiple times a day. During this three-year time period, the assault largely consisted of vaginal penetration, but in some instances, the defendant would also put his mouth on N's breasts and nipples. In an effort to escape the sexual abuse, N frequently ran away from home. The last instance of sexual assault occurred when N was sixteen years old, the day before she and K left for a Christian summer camp in Pennsylvania.
N disclosed the sexual abuse on two occasions. Her first disclosure was made in June 2009, to a childhood friend, J, with whom she recently had reconnected. N called J on the telephone and told him about the sexual assault. He advised her to stand up for herself. The second disclosure occurred in August 2009, while N was attending a Christian summer camp. During a group session pertaining to physical and sexual abuse, N stood before a group of approximately thirty girls and counselors and disclosed that the defendant physically, mentally, and sexually abuses her. She subsequently discussed the abuse with a camp counselor and other camp leaders. Also, on the final day of camp, she disclosed the abuse to the entire camp, including K, in her closing " testimonial." When N returned from camp, members of the Department of Children and Families (department) intervened and placed her and her siblings in the temporary custody of a family friend. Thereafter, N was interviewed by a police officer, and ultimately placed in the custody of B, along with S. K lived with another family before returning to live with the defendant.
The defendant was arrested on January 14, 2010, and charged with one count of sexual assault in the first degree, three counts of sexual assault in the second degree, two counts of sexual assault in the fourth degree, and one count of risk of injury to a child. Following a five-day trial, the jury returned a verdict of guilty on all counts. The court accepted the verdict and sentenced the defendant to a total effective term of twenty-five years imprisonment, execution suspended after eighteen years, followed by twenty years of special probation. This appeal followed. Additional facts will be set forth as they pertain to each claim. I
The defendant first claims that the court violated his sixth amendment right to confrontation by improperly restricting his cross examination of N with respect to her relationship with J, and her truthfulness toward various parties following her allegations of sexual assault. Specifically, the defendant argues that he was unlawfully restricted from cross examining N about the lies she purportedly told to her department caseworker with respect to her school grades, relationship with J, and computer usage. He also claims that N lied to B with respect to J, and to the police regarding an incident wherein N was locked out of B's house. Consequently, the defendant contends that he was deprived of his constitutional right to impeach N's credibility and to expose her alleged motive to fabricate the sexual assault allegations--namely, revenge for the defendant's refusal to allow her to date J. We disagree with the defendant.
The following additional procedural history and facts, as the jury reasonably could have found them, are relevant to our disposition of this claim. On direct examination, N testified that J, who is four years older than her, was a childhood friend who lived across the street from her when she was about five years old. When J's mother was at work, the defendant would often baby-sit J along with N and K. Although they lost touch over the years, N and J reconnected when N was sixteen years old. In June 2009, N called J and told him that the defendant " has sex with me all the time." J advised N to stand up for herself.
At approximately that time, N asked the defendant for permission to date J, and the defendant said no. On one occasion in July 2009, N saw J at a parade she was attending with her siblings, and he inquired as to whether the defendant continued to sexually abuse her. When N and her siblings returned home, N's brother, K, told the defendant that N was conversing with J at the parade. Consequently, the defendant forced N to take off her belt and he beat her with it. Near the conclusion of her direct examination, N testified that she and J were romantically involved and living together, and that they had had a child together. N further testified that she was arrested on April 5, 2011, due to a fight she had had with J, and that charges against her were pending.
On cross examination, the defendant asked N several questions pertaining to her truthfulness and her relationship with J. For example, the defendant asked N whether she was angry that the defendant would not allow her to date J, and whether she asked the department to place her with J's mother following her disclosure of sexual abuse. Additionally, the defendant asked N whether she snuck out of the defendant's house to party with friends. The defendant also asked N about several promises that she made to the defendant and had broken, including a promise not to disclose the sexual abuse, not to sneak out at night, and not to use the computer at night. Furthermore, the defendant asked N whether she was concerned that her sexual assault allegations would be disbelieved because she had a history of lying.
In addition to these and other questions intended to impeach N's credibility, the defendant asked N whether, during the time she was living with B, following her disclosure of sexual assault, she broke B's house rules. The state objected and the jury was excused for argument on the objection. The state argued that the question was neither relevant nor probative of whether the defendant committed the crimes charged. Conversely, the defendant argued that N's anticipated answer would reveal a pattern of breaking promises, which was relevant to her credibility. The court sustained the objection, stating, " [Y]ou've elicited that [N] promised to tell the defendant that she wouldn't tell anybody about what she says was the sexual abuse . . . You've elicited that she promised not to use the computer . . . she said, yeah, I broke that promise, too . . . So . . . you've demonstrate[d] that she made several promises to the defendant about these things and that she didn't keep a couple of these promises. I think that's fine. I let it go in. But . . . we're not going to . . . try a case within a case about what promises she kept or didn't keep in some other household. I don't think it has any probative value. So, I'm going to sustain the objection. I think you've made your point with your initial round, but I think that once we get outside the household, I think, it becomes much less probative and collateral."
Prior to the jury's return following this ruling, the defendant proffered several questions to the court regarding N's truthfulness and her relationship with J. The court determined that several of these questions were permissible. Accordingly, the defendant was permitted to ask whether: (1) N ran away from B's house on two occasions, and whether she was with J during those times; (2) pursuant to S's complaint to the department about being spanked by the defendant, N told a department caseworker that she had not been physically abused by the defendant; (3) N told the defendant she lost a camera he had lent her for summer camp, and whether a department caseworker later found the camera in N's backpack.
The court determined, however, that several proffered questions were impermissible because they were irrelevant and their prejudicial effect outweighed their probative value. The precluded questions included whether: (1) N lied to B and the department about taking the bus to and from work, when in fact, J was transporting her; (2) J would pick N up from school shortly after the start of the school day and drop her off before a department worker would arrive to pick her up; (3) N lied to a department worker about calling her caseworker, when in fact she was calling J; (4) N lied to a department caseworker about getting good grades when she was failing the majority of her classes; (5) N told her foster family that a friend gave her twenty dollars, when in fact, her friend gave her three hundred dollars; and (6) N lied to the police about an incident that occurred six weeks after her disclosure of sexual assault, when she told them that she was locked out of B's house because she was with a girlfriend, when in fact, she was with J.
The court stated that because this line of questioning pertained to events that purportedly occurred following N's displacement from the defendant's household, they did not have any probative value and were likely to confuse the jury in its determination of whether the defendant committed the crimes charged. The court did, however, allow the defendant to question N about whether, following her disclosure of sexual assault, she was always truthful to people in other households and the police, but stated that the defendant would not be allowed further inquiry into N's responses because the questions pertained to " very remote collateral, nonprobative events."
We conclude that the court's limitation of the defendant's cross examination of N did not constitute an abuse of discretion. The court engaged in a discerning analysis of the defendant's proffered line of questioning, disallowing only those questions pertaining to events allegedly occurring after N's disclosure of sexual abuse and her consequent removal from the defendant's home. The court reasonably could have determined that, given the temporal nature of the precluded questions with respect to the crimes charged, such questions were collateral, nonprobative, and likely to confuse the jury. Moreover, contrary to the defendant's contentions, he was afforded the opportunity to conduct a comprehensive cross examination of N's credibility and alleged motive. The court permitted the defendant to inquire into whether N was angry that the defendant would not allow her to date J, whether she asked the department to be placed in the custody of J's mother, and whether she ran away from B's house, where she was not being abused, to be with J. Additionally, the court allowed the defendant to conduct a limited cross examination into N's truthfulness with respect to whether, following her disclosure of sexual assault, she ever lied to B, members of other households, or the police.State v. Jessie L.C., supra, 148 Conn.App. 218-26.
II
Law/Discussion
A. Civil Matters-Generally
Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Burden of Proof
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.
The Proceedings
" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
Credibility
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness's conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [factfinder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the factfinder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (see also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
B. Habeas Corpus Matters
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694. " A reasonable probability is one which is sufficient to undermine confidence in the result." (Internal quotation marks omitted.) Vasquez v. Commissioner of Correction, 111 Conn.App. 282, 286, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008).
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted) Id., 689.
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
Evidence and Examination of Witnesses
" [A]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Similarly, " the presentation of testimonial evidence is a matter of trial strategy . . ." (Citation omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 744, 936 A.2d 653 (2007).
" The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
Pre-trial Investigation
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when (s)he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Citations omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
Retaining an Expert
The Appellate Court has recently reiterated " that there is no per se rule that requires a trial attorney to seek out an expert witness." Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). " In Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 943 A.2d 1143, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), however, [the Appellate Court] noted that in some cases, 'the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.'" Id., 76. Stephen S. v. Commissioner of Correction, supra, 134 Conn.App. 811. However, the decision not to call any witness, including an expert witness, " does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 481, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009); see also Harris v. Commissioner of Correction, 134 Conn.App. 44, 57-58, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012) (failure to call expert regarding a child's competency to testify not error where no evidence expert testimony would have weakened the child's testimony).
Plea Negotiations
The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S __, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S __, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). " In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 132 S.Ct. 1407. Similarly, " our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 132 S.Ct. 1407-08; see Lafler v. Cooper, supra, 132 S.Ct. 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. 1408.
" Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273.
In Missouri v. Frye, supra, 132 S.Ct. 1399, the United States Supreme Court held that: " defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id., 1408. When defense counsel allows an offer to expire without advising the defendant or allowing him to consider it, defense counsel does not render the effective assistance the Constitution requires. Id. " To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) ('[A]ny amount of [additional] jail time has [s]ixth [a]mendment significance')." Missouri v. Frye, supra, 132 S.Ct. 1409; see also Ebron v. Commissioner of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012) (to show prejudice in lapsed plea case, petitioner must establish: " (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court" (emphasis added)). " In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." Missouri v. Frye, supra, 132 S.Ct. 1410.
1. Attorney James Pastore
Attorney James Pastore, who represented the petitioner at the underlying trial, testified in this matter. He testified to his experience in the defense of clients charged with criminal offenses similar to those of which the petitioner stands convicted. He testified to the successful defense of clients in those matters, as well as the difficulty in defending against such charges before a jury based on the nature of the allegations. He testified that he was sufficiently familiar with the nature of such matters so as to render unnecessary expert consultation. Counsel testified credibly that he is aware of what to look for when assessing the quality of a diagnostic interview.
He testified to having received training in defending against sexual abuse allegations, as well as his familiarity with the training received by local law enforcement and diagnostic interviewers in such matters. Counsel indicated that, while in some cases he makes it a point of emphasis to challenge the quality of the law enforcement investigation, he did not do so in the instant matter as there was no basis upon which to mount such a challenge. He testified credibly that the specificity of the victim of the petitioner as her assailant provided no basis for a third-party culpability claim. He further testified to a strategic decision in not attacking the general nature of the Stratford Police Department investigation, preferring instead to focus on attacking the victim's credibility on the witness stand, so as not to confuse the jury. Counsel reasoned that there would be " far more benefit" to this trial strategy. Attorney Pastore testified that, not having seen anything " outrageous" in the video of the victim's diagnostic interview, he made what this court finds to be a strategic decision not to retain an expert to testify and attack the video out of concern that it may cause the entirety of the video to be played for the jury.
Attorney Pastore testified to conducting a thorough pre-trial investigation in that, among other things, he frequently met with and discussed the case with the petitioner, spoke with the individuals suggested by the petitioner, and investigated the petitioner's claim of retaliation.
Counsel testified credibly that, in discussions with the petitioner, he was " adamant" in asserting his innocence and wanted to go to trial. Counsel testified convincingly that the petitioner was not interested in plea negotiations and " insisted" on a trial. For those reasons, counsel did not seek an offer from the prosecuting authority. Counsel offered speculation, with insufficient probative value, as to what offer might have been forthcoming from the prosecuting authority. Counsel further testified credibly that, based on his assessment of the strengths and weaknesses of the State's case, it was " not unreasonable" to go to trial as this was a " triable case." Counsel identified the defense theory as attacking the credibility of the victim by asserting retaliation in that the petitioner, among other things, would not allow her to date. The petitioner asserted at the habeas trial that a defense strategy alleging the victim fabricated the allegations based on certain motives equated to an " alternative innocent explanation." Counsel further indicated that he sought to demonstrate to the jury that the victim was not a credible witness in that, among other things, she had a tendency to be untruthful, had a history of theft, had not disclosed sexual abuse at previous opportunities, had drug and alcohol issues, was out of control in the home and told lies to DCF and others. Counsel was able to present some of this evidence to the jury on cross examination, but was prevented by the trial court from presenting other evidence.
Counsel testified that he did not request a bill of particulars from the prosecuting authority. Counsel testified that such motions are uncommon in that the allegations in the prosecuting authority's charging document are usually particular enough to survive such a motion. In the underlying matter, the charging document, an Amended Information, was sufficiently specific so as to put the petitioner on notice as to the nature of the allegations as well as to survive a motion for a bill of particulars. (Exhibit 13, p. 22-23.)
Attorney Pastore testified that he adequately assessed both the petitioner's decision to testify and the quality of his anticipated testimony. Counsel testified to his assessment that the petitioner, who was articulate and had no prior criminal history, would make a good witness. Counsel testified that he had no qualms about the petitioner testifying and, that in preparation, he reviewed with the petitioner his prior testimony from the parallel child protection trial. They also reviewed anticipated areas of examination and prepared for cross examination by the prosecutor. Counsel testified that the petitioner made the decision to testify after having been informed by him of the " pros and cons." He further testified that the defense theory would have been more difficult to present without the petitioner's testimony based on rulings by the trial court precluding certain areas of cross examination of the victim.
Finally, counsel testified credibly and with specificity to a thorough cross examination of the several prosecution witnesses, including those listed in the instant petition. The high quality of counsel's challenge to the State's evidence is borne out by this Court's review of the trial record.
2. Jessie Lee Coger
The petitioner testified in this matter. He testified that he met with attorney Pastore only once before trial. He then testified that he met in counsel's office " once or twice." In addition to meeting with the Public Defender investigator and discussing what the petitioner wanted done in terms of pre-trial investigation, the petitioner testified that counsel read him information from the parallel child protection matter.
The petitioner testified that the defense team spoke with persons he listed as having relevant information, including a downstairs tenant, John Kaya. He further testified that the list of potential witnesses was short as he " didn't know that many people."
The petitioner continued that there was no discussion with counsel as to whether or not he would testify at the underlying trial and that attorney Pastore 'just figured" the petitioner would testify because he had done so in the child protection matter. In preparation for his testimony, the petitioner reported that he and his counsel reviewed the questions from that prior trial and that the petitioner was provided with a transcript from that trial from which to prepare his criminal trial testimony. This Court does not find credible the petitioner's assertion that he never discussed with counsel the criminal case or whether or not he would testify. This Court also finds that the petitioner's assertions that he was " beyond nervous, " had " difficulty concentrating, " was overwhelmed, was " close to a nervous breakdown" and did not understand completely while testifying are not borne out by the trial record, which is nearly devoid of instances where the petitioner requests clarification of a question, requests a question be repeated, or indicates any lack of understanding of the questions posed. (Exhibits 6, 7.) The Court also finds that the petitioner was not deprived, on direct or re-direct examination, of an opportunity to give complete responses to questions posed.
The petitioner testified at the habeas trial that he both wanted a trial and was interested in a plea offer. He then testified, however, that he didn't know what a plea bargain was until he testified at the habeas trial. When asked whether he would be willing to admit his guilt to the underlying allegations, he responded: " I don't know what I would have done then." " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).
" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
The court found the majority of the petitioner's testimony unconvincing and self-serving, having observed, weighed and evaluated not only his manner of testifying, but the substance of his testimony.
3. Edward Leary
Retired Stratford Police Detective Edward Leary testified in this matter. He was the lead detective assigned to the investigation of the sexual assault charges of which the petitioner now stands convicted. In recalling the investigation, Mr. Leary testified to training and experience in the investigation of cases of this nature as well as awareness of his duty to conduct an unbiased investigation and rule out unfounded allegations. In furtherance of the aforementioned duty, Mr. Leary testified credibly that he spoke with certain individuals identified by the petitioner. Mr. Leary testified that, in assessing the petitioner's cognitive state, he discerned no confusion on the part of the petitioner during his interviews.
Mr. Leary further testified to seeking independent evidence and pursuing potentially exculpatory investigative leads in order to test the validity of the allegations against the petitioner, including the petitioner's claim of the victim's motives to fabricate. Although aware of prior missing persons reports as well as prior unsubstantiated claims of physical abuse related to this matter, the witness testified that those reports and claims were irrelevant to the underlying investigation. The petitioner has not presented to this Court any evidence to the contrary.
III
Conclusion
Based upon a review of the entire record, this Court finds that the petitioner has failed to demonstrate constitutional deficiencies in the investigation and preparation for trial, including seeking more specificity in the nature of the allegations and preparation of a defense. It is not the case that every criminal conviction is due to ineffective legal representation. Further, the petitioner has failed to establish that he was misadvised as to his decision to testify or that he was not adequately prepared to testify in his own defense. The petitioner has also failed to demonstrate counsel's deficiencies in the examination of the several named witnesses. Additionally, the petitioner has failed to demonstrate a reasonable probability that inquiry of those witnesses into areas not covered during the underlying evidentiary proceedings would have yielded a different, more favorable, result for him. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). The petitioner has also failed to establish the need for counsel to retain, consult with, or retain a mental health professional as part of trial preparation. There has been no showing what additional benefit would have been derived from such efforts.
Finally, this Court declines the petitioner's invitation to burden criminal defense counsel with the likely pointless task of seeking pre-trial offers for clients who have no interest in entering a plea when the strength of the underlying criminal case makes a trial a reasonable alternative that in counsel's considered opinion may lead to a favorable result. This Court is not aware of any legal authority to support this proposition. " The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information . . . when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless . . . counsel's failure to pursue these investigations may not later be challenged as unreasonable." (Internal citations omitted), Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, there is no credible evidence that the petitioner would have accepted any offer.
Despite the multiplicity of the petitioner's claims, including those made at the close of evidence, this Court finds them to be without merit. Counsel's performance has not been shown to be constitutionally deficient.
Considering the foregoing, the court finds that the petitioner has failed to rebut the presumption of competence in the circumstances of this case. The Court denies the petition for writ of habeas corpus. Judgment shall enter for the respondent.