Opinion
CV144006410
02-09-2018
Edward MARTINEZ v. WARDEN, State Prison
UNPUBLISHED OPINION
OPINION
James T. Graham, Superior Court Judge
This case is what is colloquially known as a habeas on a habeas. The petitioner, Edward Martinez (Martinez) brings this habeas petition alleging inadequate assistance of both trial counsel and subsequent habeas counsel. Relevant facts as to the criminal trial, first habeas trial and second habeas trial are set forth below.
The Criminal Trial
The Petitioner was the defendant in State v. Martinez, docket number HHD-CR-07-210378-T, in the judicial district of Hartford. He was charged with five counts of sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(2) and with two counts of risk of injury to a minor, in violation of General Statutes § 53-21(a)(2). The state charged Martinez with committing these offenses between September 7, 2004 and February 1, 2006. His arrest came on April 13, 2007, and evidence in his jury trial began on September 23, 2008, before the Honorable Edward J. Mullarkey. Attorney John O’Brien (O’Brien) represented the Petitioner at trial.
The case arose from sexual abuse allegations that the complainant daughter, J, made against her biological father, the defendant Martinez. There was no physical evidence of sexual abuse and, as the state admitted in closing argument at the criminal trial, the case was a contest of credibility between Martinez and his daughter. Martinez denied sexually abusing J, both prior to his arrest and in testimony at the trial.
The complainant, J, resided primarily with her mother, the ex-girlfriend of Martinez. They had separated when J was only two years old.
After J turned nine, in September of 2004, she started spending essentially every other weekend with Martinez and his then girlfriend, Aida (Nellie) Bultron, in an East Hartford housing authority apartment. Martinez had moved in with Nellie prior to that. The apartment was one story, with two adjacent bedrooms. J slept in one bedroom, Martinez and Nellie in the other.
J, who was thirteen years old at trial, testified that at some time between Thanksgiving and Christmas of 2004, the sexual assaults started. She also characterized them as beginning in the fall of 2004. She testified that they occurred while she was nine and ten years old. She turned nine on September 8, 2004 and ten on the same date in 2005. She claimed that the abuse stopped when she moved to Pennsylvania in February of 2006. Although J and her mother returned to Connecticut in mid-2006, J did not stay with Martinez after her move to Pennsylvania.
J was eleven years old when she first told another person about the abuse. She told her cousin, AT, in early 2007. Via repetition to other family members, the information came to the attention of J’s mother. In January of 2007, J was seen by a doctor at St. Francis hospital and reported vaginal and anal sex to him. She did not report any oral sex to him nor did she report oral sex to the DCF worker she saw. Two weeks after seeing the doctor, she had a forensic interview. The interview was videotaped and introduced at trial as a full exhibit by the state and the defendant.
During that interview J stated that the sexual abuse began six months into 2005. She also stated that she tried to scream when Martinez had vaginal sex with her in the bedroom at Nellie’s apartment. At trial she indicated that she did not scream. She estimated the vaginal sex occurred twenty times in the interview. At trial she raised the estimate to thirty to forty times. In the interview she also stated that Martinez had anal and oral sex with her.
The complainant, J, testified that the first occasion of sexual abuse was oral sex. It happened when Martinez drove his car behind the apartment building and parked on the grass, behind the building. She testified that Martinez made her perform oral sex on him on five different occasions, on each occasion in his car. He drove a red Honda Accord in 2004 and 2005. She testified that bollards blocking entrance to the area behind the building, shown in photo exhibits, were not in place at the time of the oral sex.
Subsequently, on defendant’s case, Andre Dumas of the East Hartford Housing Authority testified that the cement bollards were installed behind Nellie’s apartment complex prior to May of 2004 to prevent cars from driving on the grass area. There was a five-foot distance between the posts, so a small car could drive between them.
The state impeached the credibility of Martinez through a prior conviction for perjury in connection with an application for accelerated rehabilitation and of Nellie because she had concealed Martinez’ residence with her to avoid a rent increase in her public housing apartment. Also Officer Kelsey testified that Nellie told him that she sometimes became intoxicated and fell asleep when J visited. That was consistent with J’s testimony.
Asked to describe Martinez’ penis at the original interview, J described it as having skin on it and wrinkles. At trial, she indicated that Martinez was uncircumcised and that she had seen his penis numerous times. She was aware of the difference between circumcised and uncircumcised penises because her young cousin had a circumcision following an infection and she had changed his diapers. She testified that her young cousin lacked skin around the top of his penis, that Martinez had skin, that Martinez’ penis had wrinkles and folded back. She indicated she knew male anatomy from health class. J’s mother, who had a prior sexual relationship with Martinez, testified that he was uncircumcised. Nellie, who also had a prior sexual relationship with Martinez, and began living with him in 2002, insisted that he was circumcised. Martinez, who was 35 years old, testified that he was circumcised and had been for as long as he could remember. The issue was of sufficient moment for the state to suggest, during the defense case, that it was considering having Martinez’ penis viewed by a third party. The court pointed out that the trial was being held near Hartford Hospital and defense counsel stated he had no objection and that Martinez would willingly submit to an examination. The state thereafter declined to send Martinez to Hartford Hospital or have him examined.
O’Brien had in his file medical records from a visit by Martinez to Manchester Memorial Hospital for a gastrointestinal examination for abdominal pain on June 21, 2008. Those records were also available to the state. Those physician findings indicate, under " GU: normal circ male ..." O’Brien also knew from personal examination that Martinez was circumcised. O’Brien did not offer either the medical records, testimony by a neutral third party who had examined Martinez as to whether he was circumcised, a medical witness as to whether Martinez was circumcised or photographs of Martinez’ penis.
During their first day of deliberations the jury sent out a note reading: " Why wasn’t there medical certification of his circumcision [sic] obtained for evidence [?]" The court instructed the jury that they needed to decide the case based on the evidence presented by counsel. On the third day of deliberations, October 3, 2008, the jury convicted Martinez of all seven counts. On December 17, 2008, he was sentenced to fifty years, followed by fifteen years of special parole. The convictions were upheld on appeal. State v. Edward M., 135 Conn.App. 402, 41 A.3d 1165, cert. denied, 305 Conn. 914, 46 A.3d 172 (2012).
The First Habeas Trial
In 2009, Martinez filed a pro se habeas petition in the Tolland judicial district, which was assigned the docket number CV-09-4003165-S. His appointed counsel, Attorney Christopher Duby (Duby) raised four claims in that habeas proceeding. First, that O’Brien was ineffective by admitting the full DVD of J’s forensic interview into evidence as a prior inconsistent statement. Second, that O’Brien was ineffective by soliciting testimony from Dr. Nina Livingston, the state’s expert at the criminal trial, that a minor child might show no signs of physical injury after a sexual assault by a male adult. Third, that O’Brien was ineffective by failing to investigate a complaint that Nellie had made to the East Hartford police against J’s mother. Fourth, that O’Brien was ineffective in failing to pursue Martinez’ sentence review application.
After the first habeas trial, on May 10, 2012, at which both O’Brien and Martinez testified, the court, Newson, J., issued a bench decision denying the habeas. He found, inter alia, that the video was in evidence through the state’s offer, that O’Brien’s decision to offer it himself did not constitute inadequate representation, that O’Brien’s cross examination of Dr. Livingston was reasonable, that the court lacked evidence as to the substance of the dispute between J’s mother and Nellie into which O’Brien was not allowed to inquire at the criminal trial and that O’Brien had filed a sentence review application for Martinez and there was no further evidence as to its status. Martinez subsequently filed, and then withdrew, an appeal of the decision.
The Second Habeas Trial
Martinez filed the habeas petition in the instant case on September 24, 2014. Trial proceeded on the second amended petition, dated January 4, 2017, on February 22" and 23rd, 2017. Martinez claims that Duby was ineffective for not claiming that O’Brien rendered ineffective assistance at the criminal trial when he failed to have Martinez examined by a physician concerning, or to present evidence as to, Martinez’ circumcision. He also claims that Duby was ineffective for failing to claim O’Brien rendered ineffective assistance of counsel at the criminal trial by failing to consult with and present the testimony of an expert in child sex abuse.
At the trial, the petitioner specifically withdrew the claim of actual innocence set forth in Count II. As to the specific claims of ineffective assistance which are set forth in the Second Amended Petition Count I paragraphs A 4, 5 and 6, the petitioner has not raised them in his post-trial briefs and they are considered abandoned. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court ." ) (emphasis added); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1 053 (2010) (" The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim" ). In addition, there is no credible evidence to support them.
At this trial, Martinez presented the testimony of O’Brien, Duby and Dr. Nancy Eiswirth. Dr. Eiswirth (Eiswirth) is a licensed clinical psychologist, has been for approximately 30 years, belongs to the usual professional associations and specializes in forensic child psychology. Before October of 2008, she had testified in seven or eight child sex abuse cases.
Eiswirth was highly critical of the forensic interviewer’s technique, pointing out numerous problems with the interview and giving several explanations as to why a false sexual abuse allegation might be made. She indicated she would have been available to testify at Martinez’ criminal trial, if asked.
Martinez retained O’Brien as private counsel, paying him $15,000. He was a full-time chef at a Manchester restaurant, earning about $26,000 a year and obtaining his employer’s assistance in making bond. Martinez insisted on a trial, claiming innocence. He told O’Brien that he was circumcised as an infant and produced photographic evidence of his circumcised state at the second habeas trial. He testified that his penis looked the same at this trial as it had all his life. At the second habeas trial, O’Brien testified that he did believe Martinez to be innocent, that his trial strategy was to undermine J’s testimony and credibility in various ways and to persuade the jury that certain events alleged against Martinez were impossible or implausible. One of the weaknesses he perceived in the state’s case was the testimony of both J and her mother that Martinez was not circumcised. O’Brien knew that to be untrue because he had observed Martinez’ circumcised state before the trial.
While O’Brien considered retaining a medical expert as to Martinez’ circumcision, and knew Martinez worked across the street from a urologist, he never retained a medical expert. Nor did he discuss the financial aspects of hiring a medical expert with Martinez. O’Brien simply assumed that Martinez could not afford a medical expert and did not discuss that issue with him. At the instant trial, O’Brien indicated that his decision to not retain a medical expert was strictly financial. Martinez insists that he could have afforded it.
By the end of the trial, O’Brien believed he had raised questions about J’s credibility including Nellie’s proximity during the sexual intercourse testified to by J, and the likelihood that Nellie or a neighbor would have heard J scream. He also believed he had demonstrated the implausibility that Martinez could maneuver his automobile to the location where J testified that oral sex occurred in Martinez car, because of the placement of the bollards and layout of the area behind the apartment building.
O’Brien did not offer any physical evidence of Martinez’ circumcision at the criminal trial, such as photographs or a trial display to the jury in the category of real evidence. He did not even consider using a photograph. Nor did he offer the testimony of a disinterested person or even consider having a disinterested person examine Martinez as to his circumcised state. He relied solely on the Martinez’ and Nellie’s testimony as to this important fact, despite Martinez’ perjury conviction and Nellie’s impeachment on cross as to welfare fraud. He did not consider placing into evidence the certified Manchester Memorial records showing that Martinez was circumcised. Indeed, at the crucial moment during trial, he did not think he had any other evidence to present as to Martinez’ circumcision.
The presentation of evidence showing that, contrary to the testimony of both J and her mother, Martinez was circumcised could have only been helpful to the defense and in no way could it have been harmful. There was no strategic reason for foregoing such evidence. O’Brien’s testimony, which the court credits, was that he was distracted at the end of the trial by his belief that he had scored a strategic gain through testimony by his last witness about the placement of the cement bollards. Only after the jury’s note about medical evidence of circumcision did he understand that he had made, in his own credible words, " a huge mistake in not producing independent, objective evidence, in one manner, shape or form of [Martinez’] circumcised status." [Habeas Trial of 2-22-17, transcript page 57.]
It did not occur to O’Brien that the jury might not credit Martinez’ testimony about circumcision despite his prior perjury conviction nor did it occur to him that the jury might not credit Nellie’s testimony even after her admission of welfare fraud. It did not occur to him to offer the Manchester Memorial hospital records, in O’Brien’s, possession at trial, showing the defendant’s circumcised state because, in O’Brien’s own words, " I missed that." [Habeas Trial of 2-22-17, transcript page 59.] He testified at the second habeas trial that he did not consider at the criminal trial whether physical evidence of Martinez’s circumcision would undermine J’s credibility and that he was wrong in that regard.
In sum, O’Brien did not offer readily available evidence about an important issue in dispute in the criminal trial, evidence that bore directly upon the credibility of the minor complainant and her mother, evidence that at least some jurors were seeking to utilize, simply because he forgot to offer it (as to the medical records) or neglected the obvious step of seeking it (as to a photograph of the defendant’s penis). His failure to offer them was not a conscious strategic decision but an oversight.
Photographs of Martinez’ penis, placed into evidence at the instant trial, show him to be circumcised.
O’Brien did not consult with or utilize as a witness, a child sex abuse expert, although he believed one would be helpful. He believed Martinez could not afford one. He had tried three or four child sex abuse jury cases as of 2008, was familiar with research and literature about sexual abuse and had attended one or two seminars in trying child sex abuse cases. He believed he was capable of showing the inconsistencies in J’s narrative and was able to challenge the implausibilities in J’s claims. He cross examined the forensic interviewer as to deficiencies in her technique, obtained admissions from her re same, tried to point out suggestibility issues in the interview and inconsistencies between J’s interview and her testimony.
Duby was appointed to represent Martinez in the first habeas action. At the time of that trial, he had his own firm, a contract to represent habeas petitioners with the State of Connecticut and had been practicing law at least seven years. About 25% of his cases were habeas claims. He personally had handled between two and four child sex abuse cases prior to 2012. Duby obtained O’Brien’s file in the spring of 2011 and spoke with him on the telephone. At that time O’Brien told him about the Martinez circumcision issue.
Duby reviewed Q’Brien’s file, including the forensic interview DVD. That file should have included the Manchester Memorial records also. While Duby did not specifically recall reviewing the hospital records, he did so if they were included in O’Brien’s file. Duby determined that the criminal case essentially was a credibility contest between J and Martinez and that the impeachment of J was important.
In his pro se petition, Martinez included a claim that O’Brien failed to introduce medical records or testimony of an examining physician to confirm that Martinez was circumcised. He also told Duby he wanted to make that claim at the habeas trial. Duby did not verify that Martinez was circumcised. Duby brought no such claim in the third amended petition, which was the operative petition at the first habeas trial. Nor did he remember why he did not bring such a claim. In fairness to Duby, he was handling at least two other sex cases at that time and believed at the second habeas trial that he might be confusing Martinez’ case with another in his testimony as to the circumcision issue.
Duby did not bring a habeas claim that O’Brien was ineffective for failing to utilize a child sex abuse expert for the criminal trial. He did consult with a psychologist, Dr. Mantell, concerning the case and, based on Dr. Mantell’s comments, concluded that it would not be helpful to utilize an expert to critique the forensic interview of J or to point out inconsistencies in J’s trial testimony.
DISCUSSION
The Task Facing A Petitioner When Claiming An Ineffective Habeas Counsel
" In this case, the subject of the writ- that is, whether the accused had reasonably competent habeas and trial counsel- are matters that ultimately challenge the underlying conviction ... To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective ... Only if the petitioner succeeds ... will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." Lozada v. Warden, State Prison, 223 Conn. 834, 842-43, 613 A.2d 818, 823 (1992).
The standard that a habeas court must apply to ineffective assistance of counsel claims is well established. " In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction ... That requires the petitioner to show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense ... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable ...
" In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable ... Nevertheless, [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant 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 ... 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ...
" Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct ... At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations and internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 679-80, 51 A.3d 948 (2012).
" ‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding ... [T]he petitioner will have to prove that [his] prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ...
" ‘... Unless a [petitioner] makes both [deficient performance and prejudice] showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unworkable ... Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.’ (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 474-75, 53 A.3d 257 (2012)." Davis v. Commissioner of Correction, 140 Conn.App. 597, 603-04, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013).
" Because both prongs [of Strickland ] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong ... Accordingly, a court need not consider the prejudice prong if it determines that the petitioner has failed to meet the burden of proving deficient performance ..." (Internal citations and quotation marks omitted.) Johnson v. Commissioner of Correction, 144 Conn.App. 365, 369-70, 73 A.3d 776, cert. denied, 310 Conn. 918, 76 A.3d 633 (2013).
Thus, a petitioner claiming ineffective assistance of prior habeas counsel, based on ineffective assistance of trial counsel, must satisfy the Strickland standard twice, once for each counsel. Should any habeas corpus relief be granted, however, the relief would not be another new habeas trial; instead, the matter would be referred back to the criminal court where the ineffectiveness of defense counsel occurred. The court will discuss first the question of whether criminal trial counsel was ineffective, then whether appointed habeas counsel was ineffective.
Ineffective Assistance Re Circumcision Evidence
The petitioner alleges that Duby was ineffective for not alleging O’Brien both failed to have the petitioner examined by a physician to determine whether he was circumcised and failed to present evidence that the petitioner was circumcised. As the preceding summary of the underlying procedural history and facts shows, O’Brien did present the testimony of the petitioner and Nellie that he was circumcised. Their testimony directly conflicted with the testimony of J and her mother that the petitioner was uncircumcised. The import of independent and neutral medical evidence, or of photographs, is clear because the petitioner cannot simultaneously be circumcised and uncircumcised.
As to the claim that O’Brien’s performance at the criminal trial was deficient as to the circumcision evidence, the state argues, as to both the medical records showing Martinez’ circumcised state in June of 2008 and any photographs offered in 2008 of Martinez’ penis, that the petitioner needed to, and failed to, present expert testimony at this habeas trial to establish their admissibility at the earlier criminal trial. It should be noted that photographs of Martinez’ penis, showing him to be circumcised, were placed into evidence at the second habeas trial, over the objection of the state, after foundation questions established that they fairly and accurately showed his penis both as it looked at the current time and as it looked from 2002 to the present. The laying of such a simple foundation would be within the scope of any reasonably competent trial attorney. That foundation renders the photographs admissible, if relevant. See Tait and Prescott, Handbook of Connecticut Evidence 5th edition, Section 11.17.1
The relevancy of such contemporary photographic and medical record evidence at the criminal trial is readily apparent and, contrary to the state’s argument, does not require a lawyer witness to expertly opine to a superior court judge that it would be admissible in a criminal case. " As a general rule, expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and expertise of judges ... which necessarily must be decided on a case-by-case basis ... [N]ot every petitioner claiming ineffective assistance of counsel need present expert testimony because ... the acts complained of will be such that the trie[r] of fact will be able to determine whether there has been ineffective assistance of counsel without need of expert testimony." Evans v. Warden, 29 Conn.App. 274, 280-81, 613 A.2d 327 (1992).
Given that the physical condition in question is circumcision, a permanent surgical procedure, given that Martinez was thirty-five years old at the time of the criminal trial, at least thirty-one at the time of the charged criminal acts and that he testified that he was circumcised at a young age, given that his circumcised state was in dispute and important in testing the credibility of J as to serious sexual assault charges and coincidentally, or not, that of her mother as well, and given that there was no physical evidence of the assaults, the admissibility of both the certified medical records that O’Brien possessed and should have offered at the criminal trial and the photographic evidence that could have easily been offered by competent counsel at that criminal trial with standard foundation questions, have both been established by the petitioner.
Clear proof that both J and her mother shared such a basic mistake as to the anatomy of Martinez’ penis should create several avenues of argument by defense counsel on the issue of reasonable doubt, including inter alia, collusion.
" While each habeas petition for ineffective assistance of counsel relies on its own unique set of facts, various state and federal decisions have addressed analogous circumstances. For example, in Lindstadt v. Keane, [ 239 F.3d 191, 203 (2d Cir. 2001) ], the United States Court of Appeals for the Second Circuit concluded that the performance of the defendant’s counsel was deficient, namely, because he failed to enter the testimony of two neutral probation officers who would have testified that the defendant’s wife, who was the state’s chief witness, had made numerous, unsubstantiated allegations of abuse against the defendant in the hopes of having him reincarcerated ... See also Pavel v. Hollins, [ 261 F.3d 210, 222-23 (2d Cir. 2001) ] (in ‘credibility contest,’ performance deficient, in part, because of failure to call neutral court-appointed mediator to support theory that mother manipulated children’s testimony in effort to gain full custody); Siano v. Warden, 31 Conn.App. 94, 100-05, 623 A.2d 1035 (in conviction based on credibility of testimony of coconspirator, deficient performance for failure to call physician as lone neutral witness to testify that defendant was incapable of crime due to extensive injuries from recent motor vehicle collision), cert. denied, 226 Conn. 910, 628 A.2d 984 (1993)." Bryant v. Commissioner of Correction, 290 Conn. 502, 518-19, 964 A.2d 1186, cert. denied sub nom, Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009).
" As a general rule, a habeas petitioner will be able to demonstrate that trial counsel’s decisions were objectively unreasonable only if there [was] no ... tactical justification for the course taken." Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009). O’Brien offered no tactical justification for not offering the certified medical records or a photograph of Martinez’ privates. Nor can the court discern one. Indeed, in disarmingly candid testimony O’Brien admitted that he was distracted from the issue by other evidence in the case and " missed" the certified medical record reference to Martinez being circumcised.
The court finds that, as to O’Brien’s failure to offer the certified medical record from Manchester Memorial Hospital and the failure to offer a photograph of Martinez’ circumcised penis, O’Brien’s performance was deficient. Even utilizing a highly deferential scrutiny and evaluating his conduct from his perspective at the time, his conduct fell short of reasonable professional assistance. The petitioner has proven the first prong of the Strickland test as to O’Brien’s performance at the criminal trial.
As to the second prong of the Strickland test, the court finds that it is also met. " ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ Strickland v. Washington, supra, 466 U.S. at 691, 104 S.Ct. 2052. To satisfy the second prong of Strickland, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel’s deficient performance, ‘there remains a probability sufficient to undermine confidence in the verdict ...’ Bunkley v. Commissioner of Correction, 222 Conn. 444, 454, 610 A.2d 598 (1992), overruled in part on other grounds by Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203 (2008). The second prong is thus satisfied if the petitioner can demonstrate that there is ‘a reasonable probability that, but for that ineffectiveness, the outcome would have been different.’ Summerville v. Warden, 229 Conn. 397, 430, 641 A.2d 1356 (1994); see also Siano v. Warden, supra, 31 Conn.App. at 98, 623 A.2d 1035." Bryant v. Commissioner of Correction, supra, 290 Conn. 522. See also Strickland v. Washington, supra, 466 U.S. at 695-96, 104 S.Ct. 2052 (" [s]ome errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture" ); and at 696, 104 S.Ct. 2052 (" a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support" ).
Under the facts of the criminal case, the question of whether Martinez was, or was not, circumcised was crucial in testing the credibility of the complainant. This case was, ultimately, a credibility contest between J and Martinez. " Although the absence of conclusive physical evidence of sexual abuse does not automatically render the state’s case weak where the case involves a credibility contest between the victim and the defendant[,] a sexual assault case lacking physical evidence is not particularly strong, especially when the victim is a minor." (Internal citations omitted). State v. Ritrovato, 280 Conn. 36, 57, 905 A.2d 1079 (2006).
In the present case, J’s mother and the petitioner were in a relationship and lived together until about 1997, when J was about two years old and the relationship ended. The petitioner and Nellie began living together in 2002. According to J, the sexual assaults began in the late fall of 2004 and continued until about February 2006. In January 2007, J first disclosed the sexual assaults to her cousin, AT, and then in the weeks thereafter had an examination by an emergency room physician, followed by a forensic interview, and then another examination, this time by a pediatric physician. On June 21, 2008, the petitioner was treated at Manchester Memorial Hospital and his medical chart describes him as being a normal circumcised male. The petitioner’s jury trial commenced on September 23, 2008.
During the criminal trial the jury heard testimony from J and her mother that the petitioner was uncircumcised, which directly conflicted with the petitioner’s and Nellie’s testimony that he was circumcised. Shortly after beginning deliberations, the jury sent out a note inquiring why there was no medical certification of the petitioner’s circumcision as evidence.
Under other facts, we might be left to speculate as to whether the jury found the question of Martinez’ circumcision significant. But here, there is the jury note, issued on the first of three days of deliberation. It specifically asked why there was no medical certification of Martinez’ circumcision. That is a clear signal that the jury was weighing the issue of Martinez’ circumcision, an issue which is relevant to the heart of the criminal case, the comparative credibility of Martinez and J. " [W]e need not speculate about the prejudicial effect that the [lack of] evidence could have had on the jury in this case, because the jury’s note to the court during deliberations provides insight into the facts that the jury considered when it was reaching its verdict[s]." State v. Miguel C., 305 Conn. 562, 577, 46 A.3d 126 (2012).
The jury’s verdicts, reached after its consideration of the evidence that included conflicting testimony regarding the petitioner’s circumcision, reflect the fact that it credited the complainant and not the petitioner. However, crucial information- information the jury communicated it had expected to receive- was not there to assist them in their truthfinding process. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 333-34, 103 S.Ct. 1108, 1115 (1983) (" ... [T]he truthfinding process is better served if the witness’ testimony is submitted to ‘the crucible of the judicial process so that the factfinder may consider it, after cross examination, together with the other evidence in the case to determine where the truth lies’ " ), citing and quoting Imbler v. Pachtman, 424 U.S. 409, 440 (1976) (White, J., concurring in judgment). What was not subjected to this proverbial crucible, as a result of O’Brien’s deficient performance, was neutral, objective evidence that the petitioner was circumcised. See, e.g., Bryant v. Commissioner of Correction, supra, 290 Conn. 518 (concluding " that in circumstances that largely involve a credibility contest, as did the petitioner’s trial, ‘the testimony of neutral, disinterested witnesses is exceedingly important’ " ), citing and quoting Williams v. Washington, 59 F.3d 673, 682 (7th Cir. 1995).
On these unique set of facts, the lack of this crucial and available evidence is sufficient and probable reason to doubt the reliability of, and undermine confidence in, the jury’s verdicts. Such missing evidence is the very mortar with which reasonable doubt may be built. But for O’Brien’s deficient performance, there is a reasonable probability the outcome would have differed.
Having concluded that O’Brien rendered deficient performance and that the petitioner was prejudiced thereby, the court also concludes that Duby was ineffective for not raising and litigating this circumcision claim in the petitioner’s first habeas. Reasonably competent habeas counsel would have investigated the claim identified by the petitioner and presented the available evidence to the first habeas court, as was done in the present matter. Duby’s failure to do so was a deficient performance. That failure, to a reasonable probability, prejudiced Martinez by depriving him of the same successful outcome on the circumcision issue in his first habeas trial as was achieved in this second habeas trial.
Ineffective Assistance Re Failure to Consult With and Call a Child Sex Abuse Expert
The petitioner’s second basis for ineffective assistance is that Duby failed to claim O’Brien rendered ineffective assistance of counsel at the criminal trial both by failing to consult with and to present the testimony of, an expert in child sex abuse. The petitioner presented the testimony of Dr. Eiswirth in support of these claims. Eiswirth was highly critical of the forensic interviewer’s technique, pointing out numerous problems with the interview and giving several explanations as to why a false sexual abuse allegation might be made.
" ‘... [T]here is no per se rule that requires a trial attorney to seek out an expert witness. Thompson v. Commissioner of Correction, 131 Conn.App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). In Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 943 A.2d 1148, 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., at 76, 943 A.2d 1148. To support this proposition, [the Appellate Court], in dicta, cited to other Connecticut cases and to the conclusion in Lindstadt v. Keane, [supra ], that ‘failure to consult [an] expert on sexual abuse of children constituted inadequate assistance.’ Peruccio v. Commissioner of Correction, supra, at 76, 943 A.2d 1148. 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 Stephen S., after analyzing relevant case law, [the Appellate Court] concluded that ‘cases involving child sexual abuse may, depending on the circumstances, require some pretrial investigation and consultation with expert witnesses.’ Id., at 815, 40 A.3d 796. This can be true of both medical experts and psychological experts. Id., at 815, 817, 40 A.3d 796. Where trial counsel has consulted with such experts, however, but made the tactical decision not to produce them at trial, such decisions properly may be considered strategic choices. ‘Furthermore, trial counsel is entitled to make strategic choices in preparation for trial. See Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992), quoting Strickland v. Washington, supra, 466 U.S. at 690, 689, 104 S.Ct. 2052 (" strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable" ) and " [t]he [Petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy" ...’ Stephen S. v. Commissioner of Correction, supra, 134 Conn.App. at 817-18, 40 A.3d 796." Antonio A. v. Commissioner of Correction, 148 Conn.App. 825, 833-34, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014).
In the present case, O’Brien did not consult with or use an expert on sexual abuse involving children. O’Brien did utilize cross-examination to highlight deficiencies in the forensic interviewer’s techniques, including suggestibility. Duby investigated a claim in the first petition that O’Brien was ineffective for not using a child sex abuse expert and consulted with Dr. Mantell as part of that investigation. However, Dr. Mantell concluded the use of an expert would not be helpful.
Interestingly, Dr. Mantell testified as an expert witness in such a capacity in the Antonio A. case. See Antonio A. v. Commissioner of Correction, supra, 148 Conn.App. 834.
The petitioner has neither shown deficient performance by either Duby or O’Brien in this regard, nor has he demonstrated any prejudice if the court were to assume, for discussion’s sake, that deficient performance has been proven. The petitioner has failed to establish that O’Brien’s failure to call as a witness, or consult with, a child sex abuse expert witness, constituted deficient performance. The petitioner has not established that the calling of a defense expert would probably have resulted in a different outcome. The petitioner also has not established that O’Brien’s cross examination of either lay witnesses or the forensic interviewer, which were thorough and part of a reasonable strategic approach, would have been better conducted after an expert consult. See, e.g., Antonio A. v. Commissioner of Correction, supra, 148 Conn.App. 832 (" An 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" ), citing and quoting Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
The petitioner’s claim that O’Brien was ineffective both for failing to consult with an expert in child sex abuse to assist in the cross examination of witnesses, and to present the testimony of an expert in child sex abuse is not proven and must be denied. Similarly, the claim that Duby was ineffective for failing to make such a claim at the first habeas trial, is also not proven and must be denied.
CONCLUSION
Judgment shall enter granting the second amended petition for a writ of habeas corpus. The petitioner’s convictions and sentences in HED-CR-07-210378-T, in the judicial district of Hartford, are vacated and the matter is referred to that criminal trial court for further proceedings in accordance with the law. The judgment of this court is subject to Rules of Appellate Procedure § 61-11.
It is so ordered.