Opinion
No. 564264
March 16, 2005
MEMORANDUM OF DECISION
By her amended petition filed February 13, 2004, petitioner seeks a writ of habeas corpus claiming ineffective assistance of counsel. For reasons hereinafter stated, the petition is denied.
After trial by jury, petitioner was found guilty of manslaughter in the first degree in violation of C.G.S. § 53a-55(a)(3), assault in the first degree in violation of § 53a-59(a)(3) and risk of injury in violation of § 53-21. As a result of such conviction, petitioner received a total effective sentence of 30 years in the custody of the commissioner of correction. Petitioner is now in the custody of respondent serving this sentence.
Petitioner appealed her conviction which was upheld by the Appellate Court by decision of April 30, 2002. State v. Greene, 69 Conn.App. 463 (2002). Cert. denied, State v. Greene, 260 Conn. 934 (2002).
The facts which the Appellate Court determined a jury could reasonably have found may be summarized as follows. In December 1997, petitioner operated a licensed daycare facility from her home in Windsor. The victim, Raegan McBride, born January 14, 1995, was placed in petitioner's care by her parents Monday through Friday from 7:15 am to 5:30 pm. On February 17, 1997, the victim was treated by her pediatrician for an ear infection. The doctor agreed that the child was well enough to remain in daycare. On February 24, 1997, the victim was delivered to petitioner's home at 7:15 am. At about 3:00 pm, petitioner called the child's mother to report that the victim was coughing up mucous and blood and making a strange breathing noise. Petitioner asked the mother to pick up the child. At 3:05 pm, petitioner called for emergency assistance. Paramedics soon arrived and began administering first aid to the victim whose condition had deteriorated into cardiac arrest. The child was removed to Connecticut Children's Medical Center at Hartford Hospital where she was pronounced dead at 4:12 pm.
The treating physician's diagnosis was "Shaken Baby Syndrome" or the "Shaken Impact Syndrome." A full autopsy disclosed no internal injuries to the child, but revealed bleeding under the victim's scalp and in the tissue between her scalp and skull as well as bleeding around and tears in her brain. The autopsy also discovered multiple skull fractures and that the victim's injuries occurred within about six hours of her death. The death of the victim was certified as a homicide and the ear infection was not related to the cause of death. The observations from the autopsy were consistent with a diagnosis that Shaken Impact Syndrome involving blunt forced trauma to the victim's head was the cause of the victim's death. At trial, two child witnesses who had been in petitioner's care testified about petitioner's spanking, slapping and force feeding the victim. The state also presented strong medical evidence against the defendant. Id.
After her arrest on the above charges, petitioner was initially represented by Public Defender Karen Goodrow. When Attorney Goodrow was reassigned, Attorneys Fred DeCaprio and Sara L. Bernstein were appointed to represent petitioner. These attorneys represented petitioner throughout her trial. By her petition, it is claimed that in representing petitioner, Attorneys DeCaprio and Bernstein were inadequate depriving her of effective assistance of counsel in violation of the United States Constitution, Amendment VI and the Connecticut Constitution, Article I, Section 8. Petitioner seeks to have the court vacate her sentence and grant such other relief as law and equity may require.
As a defendant in a criminal proceeding, petitioner was "constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). This right arises under the Sixth and Fourteenth amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution." Copas v. Commissioner of Correction. 234 Conn. 139, 153 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington supra, 466 U.S. 668. "In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 592 (1992)." Mercer v. Commissioner of Correction, 51 Conn.App. 638, 640-41 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to (her) conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will she receive a new trial. Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13 (2001).
The petition alleges that Attorneys DeCaprio and Bernstein were ineffective because they failed to determine and develop petitioner's version of the facts; investigate the relevant facts; interview the relevant witnesses; utilize available means of discovery; communicate with the petitioner regarding what was occurring in trial and communicate with petitioner regarding her options. Plaintiff claims that by not keeping her informed as to what was going on, she was unable to participate in her defense and since the case was very close this prevented her from being acquitted of the charges.
Attorney Bernstein was assigned to represent petitioner when Attorney Goodrow was transferred to the Chief Public Defender's office in August 1998. Attorney DeCaprio was the public defender for the Hartford Judicial District at the time and had some involvement in the case during Attorney Goodrow's representation. It was the policy of Attorney DeCaprio's office to assign two attorneys to homicide cases. In accordance with this policy, and because he had some experience in cases involving the Shaken Baby Syndrome, Attorney DeCaprio joined Attorney Bernstein in defending petitioner.
Upon taking over the case, Attorney Bernstein talked with Attorney Goodrow, read her notes and a summary of the case prepared by Attorney Goodrow. She also read the arrest warrant affidavit. Prior to Attorney Bernstein's involvement in the case, an investigator had met with plaintiff and obtained her versions of the allegations in the warrant affidavit. The investigator followed up with interviews with people mentioned in the affidavit and those suggested by petitioner. Attorney Bernstein reviewed the investigator's reports.
A psychiatrist had been retained to interview petitioner. The attorneys talked to the doctor and agreed that insanity would not be a viable defense in this case.
Discovery was initiated. This resulted in boxes of material being made available to the attorneys. Department of Children and Family and Children's Village records with respect to children who might be called to testify were obtained. Attorney Bernstein filed an amended motion concerning uncharged misconduct. The attorney became aware the state was prepared to call forty witnesses to testify concerning uncharged misconduct. These witnesses, all children, would testify to abuse by petitioner. After a conference with the judge, a ruling was made that the state would be limited to calling only two of these children to testify.
Dr. Taff, a forensic pathologist, was retained by the defense. He reviewed all of the medical reports including the autopsy report. Both Attorney Bernstein and Attorney DeCaprio discussed his finding with the doctor.
Attorney DeCaprio testified that when he came into the case, he reviewed all of the material, talked to the medical examiner and other doctors prior to trial.
In the petition, it is alleged that Attorneys Bernstein and DeCaprio failed to investigate relevant facts, interview relevant witnesses and utilize available means of discovery. The only evidence supporting this claim was petitioner's testimony that she was unaware of any discovery. In view of all of the evidence, it cannot be found that petitioner has sustained her burden of proof of these allegations. The testimony of the attorneys concerning the allegations was most persuasive. It must be found that a thorough investigation was made on petitioner's behalf and that discovery was diligently pursued in preparation for trial. Aside from the attorney's testimony, a review of the transcript indicates thorough pretrial preparation by the attorneys. This is most apparent in the cross examination of the state's witnesses particularly the medical experts.
It was determined by the attorneys that petitioner's defense would primarily be a burden of proof case. They concluded that the state would have difficulty proving beyond a reasonable doubt that petitioner caused the death of the child. The attorneys would rely on cross examination of the state's witnesses concerning this issue.
Petitioner claims that the attorneys failed to determine and develop her version of the facts. This has not been proven. Petitioner's version of the facts was that she did nothing wrong. She claimed that the child was sick when she was delivered to petitioner's care and that she did everything which could have been done once the child's condition was apparent.
The purpose of retaining the forensic pathologist, Dr. Taff, was to help counter the medical evidence which the attorneys knew would be at variance with petitioner's version of the facts.
Petitioner could have testified and given her version of the facts. Near the end of the trial, a meeting was held with petitioner, her husband and the attorneys concerning whether or not petitioner should testify. The subject of this meeting was really how best to get petitioner's version of the facts before the jury. When it was agreed that Detective Swanson's testimony effectively placed petitioner's version of the facts before the jury, it was deemed unnecessary for her to testify and she elected not to do so.
It is claimed by petitioner that Attorneys Bernstein and DeCaprio did not communicate with petitioner during the trial and that by keeping her in the dark as to what going on, the attorneys prevented her from participating in her own defense. On this, as on other subjects, petitioner's testimony and her recollections of events was substantially different from that of her attorneys. For example, petitioner claimed that she only met with the attorneys once four to five days before the trial and that there was no discussion concerning the trial at that time. She said that she had no idea what was to happen at the trial or who would testify.
Attorney Bernstein testified that she met with petitioner on numerous occasions at the court house and in the public defender's office. She stated that she went over the arrest warrant affidavit with petitioner, read the allegations to her and also went over the statutes which petitioner was charged with violating. This was done with Attorney DeCaprio present. Also present was the attorney who represented petitioner on charges pending in the G.A. Court as well as petitioner's husband. At another meeting, Attorney Bernstein reviewed with petitioner and her husband how the evidence might come in, who the witnesses would be and what the outcome of the trial might be. As previously noted, the attorneys met with petitioner and her husband to discuss whether or not she should testify. Petitioner testified that it was her decision not to testify. It must be concluded that this decision was the result of the conference with her attorneys.
Petitioner's testimony concerning ignorance of the witnesses who would testify cannot be correct since the names of the potential witnesses were revealed in her presence during voir dire.
It cannot be found that petitioner has proven her claims concerning the attorneys' failure to meet with her and keep her informed about the trial.
At the habeas trial, petitioner testified that she did not have confidence in her attorneys during the trial. However, she never complained and never brought anything derogatory to the attention of the judge. Attorney Bernstein testified that after closing arguments, petitioner and her husband described Attorney DeCaprio's final argument as brilliant, and they agreed that the lawyers did a good job. She thanked them after the verdict.
From all of the evidence, it must be concluded that petitioner has failed to prove her claims of ineffective assistance of counsel. Deficient performance has not been proven and it cannot be established that petitioner suffered any actual prejudice as a result of the representation of Attorneys Bernstein and DeCaprio.
Accordingly, the petition for a writ of habeas corpus is denied.
Joseph J. Purtill, JTR