Opinion
No. CV 02-0470474 S
May 16, 2006
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In a two-count petition, this inmate seeks habeas corpus relief alleging ineffective assistance of his trial counsel. After a jury trial, he was convicted of sexual assault in the first degree (two counts), sexual contact with a victim under the age of 16 and having intercourse with a victim under the age of 13. The victim was his daughter.
On May 16, 2002, he received a total effective sentence of 30 years.
The allegations of ineffective assistance are that trial counsel did not introduce into evidence the complainant's medical records, the "rape kit" report, nor did he subpoena her treating physician or other medical providers.
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
The only evidence against the petitioner was the testimony of his daughter, the alleged victim. On January 31, 2001, she accused the petitioner of the offenses charged and indicated he had committed other assaults on her prior to this date. At no time prior to January 31 did she report these episodes, nor did her mother indicate she was aware of prior episodes.
The victim's medical records and rape kit report were produced for this trial and did not support the victim's claims. The physician who examined the victim on January 31 testified at trial that no evidence of a sexual assault was found. This examination took place several hours after the alleged assault and the doctor explained that in such cases involving young complainants medical and biological factors frequently cause trauma symptoms to be absent.
Thus, the state had no physical evidence of the alleged offenses.
Trial counsel explained his failure to introduce the items listed above as a tactical decision. He felt that the doctor's testimony supported his defense that there were no such sexual assaults. He further stated that in the absence of physical evidence, in view of the doctor's testimony, the introduction of these reports would have served no defense purpose and could have suggested there was "something there." He recognized the documents in question. (Exhibits 2 3.)
An examination of these exhibits strongly suggests to the court that they could well have served to support the victim's claims in the minds of the jurors.
The court does not find this so-called failure even suggestive of ineffective assistance of counsel.
II
Though the conclusion reached above is dispositive of the habeas corpus petition, the court feels compelled to address other issues encountered in this trial.
The petitioner gave a written statement to the police after they responded to the sexual assault complaint. In that statement he admits the January 31st offense. (Exhibit 4.) Significantly, the victim's trial testimony as to the assault is virtually identical to the petitioner's version. His statement was before the jury.
This fact, coupled with the testimony of the child's mother to the effect that the petitioner admitted at the very least an attempted sexual assault, would have presented trial counsel with an impossible tack.
The petitioner guaranteed his conviction when he elected to testify. There, he attempted to put a new gloss to the version contained in Exhibit 4.
It is totally inconceivable that the jury verdict would have been different had trial counsel offered the disputed documents and subpoenaed medical providers.