Opinion
TSRCV074001993S.
11-28-2012
Rafael CRESPO v. WARDEN, STATE PRISON.
UNPUBLISHED OPINION
SFERRAZZA, S.J.
The petitioner, Rafael Crespo, Jr., seeks habeas corpus relief with respect to his convictions, after a jury trial, of committing two sexual assaults in the first degree and two assaults in the third degree, for which crimes the petitioner serves a total, effective sentence of twenty years, execution suspended after fourteen years, and fifteen years probation. The jury acquitted the petitioner of two other counts of sexual assault first degree and kidnapping second degree. A guilty verdict on a third count of assault third degree was vacated and dismissed by the trial court before sentencing. The convictions were affirmed on direct appeal, State v. Crespo, 303 Conn. 589 (2012), affirming State v. Crespo, 114 Conn.App. 346 (2009).
In his third, amended petition, the petitioner alleges in the first count that his defense counsel, Attorney Robert Pickering, provided ineffective assistance by failing to present the testimony of certain witnesses; by failing to investigate and impeach the complainant properly; by failing to raise, before trial, the special defense of the expiration of the statute of limitations with respect to the assault third degree charge which was later dismissed; by failing to object to the use of the words " victim" and " rape" during the trial; by failing to move to suppress certain evidence; by failing to assert the correct exception to the Rape Shield law; and by failing to consult with a translator.
The second count of the amended petition is grounded on a purported due process violation based on prosecutorial misconduct regarding use of the words " victim" and " rape." The respondent alleges that the petitioner is barred from submitting this count to this court because of procedural default. Specifically, the petitioner could have presented this claim on direct appeal but neglected to do so without good cause.
In Johnson v. Commissioner, 218 Conn. 403 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132 (1993). The burden of proving good cause and prejudice for procedural default rests with the habeas petitioner, Johnson v. Commissioner, supra, at 409.
In this case, the petitioner submitted no evidence of any good cause justifying his failure to assert prosecutorial misconduct at trial or on appeal. Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, at 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682 (1992), cert. denied, 223 Conn. 909 (1992).
The petitioner has, as described above, also raised this claim in the context of his ineffective assistance count. That is the proper way to allege a claim based on the failure of defense counsel to preserve some issue at trial or on appeal rather then allege a freestanding due process claim which could and should have been presented at trial or on appeal. Therefore, the court dismisses the second count without further review of its merits.
Turning to the ineffective assistance claims, our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.
This standard of reasonableness is measured by prevailing, professional norms. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
The Appellate Court, in State v. Crespo, 114 Conn.App. 346, 348-53, supra, summarized the evidence upon which the jury could logically and reasonably have based its verdicts as follows:
The defendant met the victim during the summer of 2002, and the two began dating. At times relevant, the defendant was a police officer and the victim was a college graduate student. In the months prior to December 2002, the two engaged in sexual activities together, but this conduct did not include vaginal or anal intercourse. In December 2002, the defendant forcibly engaged in vaginal intercourse with the victim but, prior to this sexual encounter, she had been a virgin. On February 4, 2003, the victim sought medical attention at a college health clinic. Although the victim reported to a nurse that she had been raped, the victim declined to report the incident to the police. The victim believed that if she were to report the incident, the defendant's status as a police officer would protect him and that he would retaliate against her.
Following the incident, the victim's physical and psychological well-being suffered. The victim took steps to distance herself from the defendant. For example, on several occasions she did not return the defendant's telephone calls or e-mails. The defendant persisted in his efforts to continue the relationship by calling and emailing the victim. Also, he appeared uninvited at both her residence and place of employment. Nonetheless, the victim's relationship with the defendant continued, and she accepted favors and gifts from the defendant and, on occasion, accepted his invitations to dinner and the like. The defendant's relationship with the victim, however, was characterized by violent out-bursts. During an incident in March 2003, the defendant unexpectedly visited the victim at her residence. The defendant angrily accused the victim of making herself look good so that she could attract other men. The defendant called the victim a slut and physically assaulted her by punching her and pulling her hair. The defendant told the victim that he wanted to end their relationship, yet the defendant thereafter contacted the victim. The defendant repeatedly threatened the victim, both implicitly and explicitly, with physical violence. Although the victim feared the defendant, she continued to spend time with him, often in public settings, and did not report any incidents of abuse to law enforcement personnel.
In June 2003, the victim returned to Connecticut from a family engagement in another state. The defendant had instructed the victim to call him while she was away, but the victim had called him only once. When the victim arrived at the airport, the defendant was waiting there for her and, taking her by the hand, angrily led her away from the airport. The defendant drove the victim to her residence. Upon accompanying the victim inside, the defendant played the messages that had been left on the victim's telephone answering machine while she was away. Consequently, the defendant heard a message left for the victim from a man who had met the victim at a local nightclub. The caller indicated that he thought the victim was attractive and that he wanted to see her again.
Upon hearing this message, the defendant became irate. The defendant physically assaulted the victim by slapping the victim's face, pulling her hair, punching her, kicking her and knocking her to the floor. The defendant called the man who had left the message for the victim, he argued and yelled at him while the victim pleaded for the defendant to stop.
After the defendant ended the telephone conversation, he continued his physical assault of the victim. Despite her protests, the defendant hit, kicked and punched the victim about her body while yelling at her and calling her a whore. The defendant punched the victim in the face and knocked her to the floor. Thereafter, the defendant forcibly removed the victim's clothing and vaginally raped her. Following the sexual assault, the defendant left the residence. The victim reported this assault to her mother but not to the police. Shortly after this incident, the defendant sent the victim an e-mail in which he expressed his intent to stop interacting with the victim. Nevertheless, the defendant later resumed having contact with the victim.
On May 15, 2004, the defendant drove to the victim's place of employment, and the victim permitted the defendant to take her shopping and to a movie. The defendant drove the victim to a shopping mall, where he purchased undergarments for her. Later, while the two were watching a movie, the defendant became upset with the victim and hastily left the movie theater. The victim left the theater with the defendant in his automobile. Following a dispute over the victim's sunglasses, the defendant became more and more agitated while driving the victim home. He began striking his steering wheel and was brandishing a gun. The defendant drove his automobile into a parking lot where he began to beat the victim. The victim exited the automobile, but the defendant pursued her and continued to strike her. The defendant kicked the victim, causing her to fall to the ground. Among her injuries, the victim sustained a significant elbow injury. When the victim was unable to rise from the pavement, the defendant drove away from the scene. Several minutes later, the defendant returned and forced the victim into the automobile by pulling her hair and pushing her into the passenger seat.
The victim told the defendant that she did not want others at her college residence to see her in the condition that she was in. At her suggestion, the defendant drove her to his parents' home, where the victim stayed for several days. Thereafter, the defendant and his father drove the victim back to her place of employment. In the following days, the victim sought treatment for her injuries from medical personnel at her college. At this time, the victim suffered emotionally, and her physical injuries ranged from the injury to her elbow to dehydration. The victim told a nurse and a physician that her boyfriend had beaten and sexually assaulted her. An administrator at the victim's college also became aware of the victim's condition as well as the victim's concern for her safety. As a result, the victim moved into a more secure dormitory at the college. Despite discussing her claims of abuse with these individuals associated with her college, the victim declined to report the incidents of abuse to the police.
In mid-June, on the victim's birthday, the defendant called the victim at her place of employment approximately fifty times. The victim agreed to go to dinner with the defendant. After dinner, the two returned to the victim's residence. The defendant, who was cordial during the date until this time, became irritable. He removed his clothing, accused the victim of staining his shirt during dinner and demanded that she clean the shirt. Upon the victim's refusal, the defendant's anger escalated, and he became verbally abusive. Then, the victim and the defendant engaged in consensual vagina intercourse. Afterward, the defendant forcibly engaged in anal intercourse with the victim against her will. The defendant later left the victim's apartment while she was showering.
The defendant and the victim remained in contact following this incident. By November 2004, the victim had taken steps to end the relationship despite the defendant's efforts to continue the relationship. In December 2004 the victim reported the incidents of abuse to a police officer. The defendant's arrest followed.
At his criminal trial, the petitioner acknowledged that he and the victim had a " stormy romantic relationship." He testified that they engaged in consensual sexual intercourse, but he denied ever assaulting the victim physically or sexually.Id., at 353.
At the habeas trial, the petitioner proffered evidence only as to the following specifications of ineffective assistance by Attorney Pickering.
1. arguing the wrong exception to the Rape Shield law;
2. failing to assert the statute of limitations defense before trial;
3. failing to object to the use of the words " victim" and " rape"; and
4. failing to call as defense witnesses Marie Calma, Cesar Rivera, and Jeffrey Cruz.
Rape Shield Law
Attorney Pickering argued to the trial court that the petitioner ought to be permitted to introduce evidence as to the victim's sexual activity with a Gordon Anic by virtue of the exception to exclusion under the Connecticut Rape Shield statute contained in General Statutes § 54-86f(4). Specifically, Pickering contended that, because the victim testified on direct examination that she was a virgin and wanted to maintain that status until marriage, the petitioner should be permitted to cross examine her regarding any sexual relationship with Anic.
Subsection (4) of § 54-86f allows admission of such evidence if it is " so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights." Attorney Pickering's argument was that the victim's former relationship with Anic closely resembled that in which she participated with the petitioner and would bear on the victim's bias, financial interest, and motive to falsely accuse the petitioner of forcible intercourse. The trial court ruled that this offer of proof lacked probative value and disallowed such cross examination. The Appellate Court agreed that evidence of that sexual history with Anic was irrelevant to the charges against the petitioner, State v. Crespo, 114 Conn.App. 346, 364 (2009).
However, our Supreme Court affirmed the exclusion on a different basis, State v. Crespo, 303 Conn. 589, 599 (2012). The high Court assumed that such evidence would have been relevant as to the victim's credibility, rather than bias or motive, and a different exception might have applied on that ground, viz. § 54-86f(2). Subsection (2) provides for potential admissibility of evidence of the victim's sexual history if such history bears on credibility when the victim has previously testified about that history in the case. Because Attorney Pickering never mentioned subsection (2) as part of his argument for admissibility, the petitioner had failed to preserve this issue on appeal. Id., at 599.
The petitioner now submits that this omission by Attorney Pickering fell below the professional norm for criminal defense lawyers defending persons changed with sexual assault, i.e. it was necessary for Attorney Pickering to state the proper basis for the claim of admissibility.
Attorney Richard Meehan testified as an expert in the area of criminal defense against sexual assault charges on behalf of the petitioner. He opined that Attorney Pickering's failure to assert the correct subsection of the Rape Shield statute constituted ineffective assistance. However, the court need not address that opinion.
The court finds that the petitioner has failed to prove the second, or prejudice, prong of the Strickland standard. The petitioner must prove, by a preponderance of the evidence, that the failure to convince the trial judge to permit Attorney Pickering to delve into the victim's previous sexual activity with Anic creates a reasonable likelihood that the outcome of the criminal trial would have been different.
It has long been the rule in Connecticut that extrinsic evidence may not be used to contradict the testimony of a witness with regard to behavior which is collateral to the material issues in the case. State v. Horton, 8 Conn.App. 376, 380 (1986); Colin C. Tait & Eliot D. Prescott, Tait's Handbook of Connecticut Evidence § 6.35.7 (4th ed.2008), p. 381. If a line of questioning is pertinent only to contradict a witness, it is collateral. State v. Wilson, 158 Conn. 321, 324 (1969); State v. Adorno, 121 Conn.App. 534, 549-50 (2010), cert. denied, 297 Conn. 929 (2010); Colin C. Tait & Eliot D. Prescott, Tait's Handbook of Connecticut Evidence, supra.
In State v. Adorno, supra, a case with very similar facts to the present one, the rule against admission of extrinsic evidence to impeach the alleged victim of a sexual assault, based on her sexual history with another person, in the context of the subsection (2) exception to the Rape Shield statute, § 54-86f, was upheld. Id., at 549-50. Defense counsel wished to offer extrinsic evidence from two Planned Parenthood counselors to contradict the victim's testimony about her sexual activity with a boyfriend. The Appellate Court deemed such evidence inadmissible and that the cross examiner was relegated to the victim's answers. Id.
In the present case, the petitioner never called upon the victim or Gordon Anic to testify at the habeas trial. It is mere conjecture that any favorable testimony would have flowed from the victim had Attorney Pickering been permitted to question her about her relationship with Anic. It is far more likely that the victim would have reiterated her claim to virginity, and Attorney Pickering would have been bound by that answer. Indeed, the victim testified over a three-day period and never wavered in her accusations against the defendant. There is simply no evidence to substantiate that the victim would have admitted to having lied about her sexual history on direct examination.
Even if Attorney Pickering had successfully urged the trial court to permit this line of inquiry under § 54-86f(2), the petitioner has failed to meet his burden of proving any likelihood that the outcome of his case would have been altered. Therefore, this specification of ineffective assistance cannot afford habeas relief.
Statute of Limitations
The petitioner also alleges that Attorney Pickering ought to have moved to dismiss the state's assault third count before trial rather than after verdict. The prosecutor agreed with Attorney Pickering that the charge could be dismissed, and the trial judge dismissed it before sentencing.
To be clear, then, the petitioner's ineffectiveness claim is not that the petitioner is now serving a sentence based on the erstwhile assault charge. Rather, the petitioner, through his expert witness, argues that the very existence of the former charge during the trial on the other counts prejudiced him as to those other counts. This court also rejects this argument as failing to satisfy the prejudice component of the Strickland test.
The petitioner has cited no Connecticut case which holds that a criminal accused must be found guilty on all counts or none at all. This is essentially the logic employed by the petitioner. He contends that by allowing the jury to hear evidence on a count which does not result in a valid guilty finding, the remaining counts are somehow tainted by their sheer number. This court holds that no such presumption of jury misconduct exists.
Clearly, the jury in the present case was not affected as the petitioner fears. The jury acquitted the petitioner of two sexual assault counts and the kidnapping charge. It is apparent that the jury was quite capable of evaluating each count individually and held the state to its high burden of proof as to each count.
In addition, the same evidence regarding the dismissed count was also admissible regarding the sexual assault charge pertaining to the same date. That is, the jury would have heard substantially the same evidence whether the assault third degree count was present or absent. The misdemeanor statute of limitations had no impact on the sexual assault charge because it is a felony.
The court finds that the delay in raising the statute of limitations issue played no part in the petitioner's conviction on the other charges for which he was found guilty. Therefore, this claim of ineffective representation also fails.
Use of " Victim" and " Rape"
Next, the petitioner alleges that Attorney Pickering was deficient by failing to object to the use by the prosecutor and witnesses of the words " victim" and " rape." Repeated references to the complaining witness as the victim during the guilt phase of a criminal trial is inappropriate and improper. State v. Kurrus, 137 Conn.App. 604, 619-20 (2012); State v. Cortes, 84 Conn.App. 70, 84-85 (2004). Similarly, a prosecutor should avoid calling the defendant a " rapist" before a determination of guilt has been returned. State v. Holloway, 116 Conn.App. 818, 842 (2009).
In the present case, the uttering of the words " victim" and " rape" by the witnesses was in the context of constancy of accusation testimony, i.e. the witnesses were either paraphrasing the victim's out-of-court statements, or an expert witness was describing how victims of rape and assault may react to that type of abuse generally. In those contexts, the witnesses' use of those words were unavoidable and proper because the witnesses were not rendering their personal opinions as to the particular victim in this case or the defendant.
This court's review of the trial transcript demonstrates that the judge always employed the term " complainant" or a variant of that word. Neither the judge nor the prosecutor used the word " rape" or " rapist" when addressing the jury. In argument to the jury, the prosecutor referred to the victim scores of times, but only spoke the word " victim" less than ten times. Both the judge and the prosecutor cautioned the jury, repeatedly, that the prosecutor's argument was not evidence and that the presumption of innocence cloaked the petitioner until his guilt was established by the evidence beyond reasonable doubt.
The court's research disclosed no case with similar facts which resulted in a determination of unfair prejudice to a criminal defendant. In State v. Carter, 84 Conn.App. 70 (2004), affirmed on other grounds, 276 Conn. 241 (2005), the Appellate Court held that the trial court's reference to the complainant as the victim seventy-six times, in a case where the existence of the sexual assault was at issue, where the trial judge overruled objections to that use, and where the trial judge indicated it would refuse a request for a curative instruction, constituted reversible error. Id., at 84-85. In that case, the prosecutor had also continually referred to the complaining witness as the victim.
Later cases, however, have restricted the Carter decision to its extreme facts by ruling that the isolated use of " victim" by the prosecutor in summation " is neither improper nor prejudicial." State v. Kurrus, supra, at 619. This conclusion results because " the jury was likely to understand that the state's identification of the complainant as the victim reflected the state's contention that, based on the state's evidence, the complainant was the victim of the alleged crimes." Id., at 620, citing, State v. Warholic, 278 Conn. 354, 369-70 (2006) (emphases added).
Therefore, the prosecutor's infrequent use of the word " victim" was within the bounds of due process. The petitioner's own expert witness, Attorney Meehan, conceded that reversal of the petitioner's convictions based on this specification of ineffective assistance was remote. The court finds that the petitioner has failed to prove both the performance and prejudice prongs of the Strickland test as to this allegation.
Failure to Call Witnesses
The petitioner argues that Attorney Pickering rendered substandard representation by failing to procure and present the testimony of three witnesses at his criminal trial, viz. Marie Calma, Cesar Rivera, and Jeffrey Cruz. The court discusses each potential witness separately.
Marie Calma
Attorney Pickering never called Marie Calma as a defense witness. Ms. Calma was the petitioner's friend and, briefly, his paramour before the petitioner began to date the victim. She also has special knowledge and experience in working with person with disabilities. She was trained by the Department of Children and Families to recognize and respond to abused and/or neglected children. Presently, she is a special education teacher.
Fortuitously, in June 2003, Calma saw the petitioner walking with the victim at a Six Flags amusement park. Calma was between five and fifteen feet away from the couple when she glanced over her shoulder as she passed by them. She recalled that the victim wore a sleeveless top and Capri pants. Calma never noticed any bruises on the victim, nor did the victim appear distressed.
Attorney Pickering interviewed Ms. Calma about this event. Calma attended the petitioner's criminal trial and was prepared to relate the information regarding the Six Flags encounter. Attorney Pickering declined to call her as a witness during the trial, although she spoke in the petitioner's behalf at his sentencing. At the habeas trial, Pickering forgot why he made this decision, but he indicated that it was his practice to present every witness whose testimony might benefit his client. Unfortunately, Attorney Pickering relinquished his file pertaining to the petitioner's case some years ago, and he cannot recall to whom he forwarded the material.
The petitioner offered the expert testimony of Attorney Richard Meehan at the habeas proceeding. Attorney Meehan has several years of experience representing criminal defendants charged with serious crimes including sexual assault cases. He has tried around forty cases to verdict, including cases where his client was charged with rape.
Attorney Meehan opined that Attorney Pickering was remiss in failing to present the testimony of Ms. Calma, but Meehan acknowledged that her single, fleeting glance toward the victim under innocuous circumstances was " problematic." The court agrees with the latter characterization.
A tactical decision to refrain from utilizing a witness which falls within the wide range of reasonable, professional conduct cannot form the basis for a valid, ineffective assistance claim. Stephen S. v. Commissioner, 134 Conn. 801, 820-21 (2012). The reasonableness of the decision must be viewed from the trial attorney's perspective at the moment it was made rather than through the distorting lens of hindsight. Vines v. Commissioner, 94 Conn.App. 288, 296 (2006).
An isolated, passing glance, under neutral circumstances, lacks the evidentiary foundation to admit Calma's assessment of the victim's physical and emotional condition in June 2003. Even if admissible, the evidence was of negligible probative force. See Connecticut Code of Evidence § 7-4(a) (2009 ed.).
Attorney Pickering would have been understandably concerned about opening the door to Ms. Calma's present and previous relationship with the petitioner. Pickering had interviewed a number of the petitioner's police colleagues who gave an unfavorable impression of the petitioner with respect to the abuse allegations. Pickering discussed Calma's prospective testimony with her and declined to call her as a witness. Although Pickering's memory fails him as to the precise reason for that decision, the court accepts his statement that he would have called her if he felt she could have benefitted the petitioner's cause. Consequently, the court determines that the petitioner has failed to meet his burden of proving the deficient performance component of the Strickland standard.
The court also finds that the absence of Calma's testimony had no influence on the outcome of the petitioner's criminal case. Her proposed testimony was confined essentially to what she did not observe during the transitory encounter at Six Flags park. Other witnesses were called by the defense regarding the victim's physical appearance and emotional state during the relevant period. These witnesses had much more significant interactions with the victim. These witnesses were the petitioner's sister and father and a fellow police officer and friend, Isaac Medina. It is important to point out that the petitioner never denied that the victim sustained a more than trivial injury to her elbow which required extensive medical treatment. What was in controversy was whether that injury was inflicted by the petitioner's abuse or otherwise.
Cesar Rivera
As mentioned above, Attorney Pickering possesses scant memory regarding why witnesses were not called by him in the petitioner's criminal trial. Mr. Rivera works for the Connecticut Department of Victims Services and is a longtime acquaintance of the petitioner. At the habeas trial, he testified that he met the victim once when she and the petitioner took a ski trip to New Hampshire along with Rivera and other friends of the petitioner. He found the victim to be aloof and very possessive of the petitioner's time and company. He observed no animosity or argumentative behavior between the victim and his friend. He was never called upon to testify at the criminal trial, although he was available and willing to do so.
Again, this court finds that Mr. Rivera's testimony was cumulative of that adduced at the criminal trial by the petitioner's family members and a friend. In addition, on cross examination by the respondent at the habeas trial, Mr. Rivera acknowledged that it was the petitioner, himself, rather than Attorney Pickering who was unreceptive to Rivera's offer to testify. Under the circumstances, the court finds that the petitioner failed to prove either prong of the Strickland test.
Jeffrey Cruz
The court reaches a different conclusion with regard to the failure to call Jeffrey Cruz to testify for the defense at the petitioner's criminal trial. Mr. Cruz testified at the habeas trial that he is a software engineer who resides with his family in New Jersey. He and the petitioner have been friends since early childhood.
Over the Valentine's Day weekend in 2004, the petitioner and the victim were guests at the Cruz residence from Saturday to Monday. At the criminal trial, the victim also described this arrangement and visit. She testified that, while at the New Jersey home, the petitioner struck her in the face leaving a conspicuous bruise. Cruz advised her to cover the bruise with cosmetics. Cruz also counseled her to sever the relationship with the petitioner because, in Cruz's opinion, the petitioner was abusive toward women and " treated them like dogs."
In stark contrast to this version of events, Cruz testified, six years later, that he observed no such injury nor did he recommend to the victim that she break off her relationship with the petitioner. Instead, he described the victim as being very argumentative and jealous toward the petitioner when he met with female relatives and friends. The petitioner consistently tried to defuse the situation, but nothing he did assuaged the victim, and the tensions between them remained high during their stay. Furthermore, Cruz adamantly denied characterizing the petitioner as abusive toward women.
Attorney Pickering interviewed Cruz by phone in preparation for the petitioner's case. Parenthetically, the police in Connecticut also spoke to Cruz about the victim's allegations. Pickering told Cruz that he would contact him if Cruz was needed as a defense witness. Cruz arranged to take the time off from his job to be available for that purpose. Pickering never asked Cruz to testify at the criminal trial.
The key factual issue for the jury to resolve at the petitioner's criminal trial was whether the state had proven, beyond a reasonable doubt, that the petitioner had intentionally hit the victim on three distinct occasions, whether he compelled her, through the use of force and intimidation, to engage in vaginal and/or anal intercourse on four different days, and whether he handcuffed the victim to a bed and kept her locked up in chains in a dirt basement. The defense was that the petitioner never struck the victim, their sexual acts were always consensual, and that he never restrained the victim as she had complained. As mentioned above, the jury acquitted the petitioner of the kidnapping charge and two of the sexual assault allegations. The petitioner took the stand at the criminal trial, and clearly that trial was one where the victim's veracity was paramount.
Consequently, the trial evidence pitted the victim's testimony against the petitioner's. Neither person had a previous criminal record. Both were employed in respectable careers. The petitioner was a police officer, and the victim was a graduate student in physics. Forensic evidence played no important role in the case. Instead, constancy of accusation and medical and psychological evidence regarding signs of abuse predominated to corroborate the victim's allegations. The split verdict implies that the jury found some of the victim's accusations less than compelling, especially regarding the restraint allegations.
It was, therefore, incumbent upon Attorney Pickering to utilize an ostensibly credible witness, such as Mr. Cruz, whose testimony would contradict the victim's so completely. Cruz' information was not cumulative of others in the case. He directly refutes testimony by the victim which portrayed the petitioner as abusive to women even in the eyes of the petitioner's closest friend. Cruz also rejected the victim's statement that the petitioner's blow left a visible mark on her face. This is not a case where Jeffrey Cruz recanted earlier statements.
Attorney Pickering testified that he cannot remember why he never called Mr. Cruz as a witness, nor could he speculate as to any basis for that decision. Attorney Meehan emphasized that a lawyer defending a client against allegations of companion abuse, especially sexual assault, must explore every avenue of impeachment of the complaining witness for which a reasonable basis exists. Meehan opined that Cruz' testimony was crucial to the defense theory of fabrication of assault charges by the victim, and the court concurs in that opinion.
The court concludes that the petitioner has proven, by a preponderance of the evidence, that Attorney Pickering provided him with ineffective assistance by neglecting to call Jeffrey Cruz as a defense witness; that this omission created a reasonable likelihood that the outcome of the petitioner's criminal trial would have been different; and that confidence in that outcome has been undermined.
Therefore, the court grants the habeas corpus petition, vacates the petitioner's convictions, and remands the matter to Part A of the Criminal Division of the New Haven Judicial District for further prosecution including the setting of bond.