Opinion
No. TSR CV04 0004319-S
May 25, 2007
MEMORANDUM OF DECISION
Petitioner initiated the present matter by way of filing a pro se petition for a writ of habeas corpus on December 18, 2003, which was amended on May 16, 2006. The amended petition raises claims in three counts: First, ineffective assistance by petitioner's trial defense counsel, Attorney Robert McKay; Second, ineffective assistance by petitioner's appellate counsel, Attorney Moira Buckley; Third, that petitioner's conviction and confinement is unlawful due to prosecutorial misconduct. Respondent's return denies petitioner's material allegations and, though not explicitly stating that portions of counts one and two are barred by the doctrine of res judicata, seeks to have petitioner precluded from presenting arguments in counts one and two because they were raised on direct appeal. Petitioner's reply denies that he is precluded from raising these arguments because they form part of petitioner's claims of ineffective assistance of counsel and thus were not raised on direct appeal.
The matter came before the court in January 2007 for a trial on the merits. Witnesses included petitioner, Lawrence Betterini, Robert McKay, Moira Buckley, Thomas Farver, Pamela Linder and Louis Luba. The court finds Betterini, McKay, Buckley, Farver, Linder, and Luba to be generally credible and petitioner to be generally not credible. The court has reviewed and considered the testimony, the exhibits, petitioner's memorandum of law and the parties' closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
Respondent did not file a memorandum of law.
In closing argument at the habeas trial petitioner withdrew the following portions of the amended petition: count one ¶ 12e, 12l, 12m; count two ¶ 12b.
FINDINGS OF FACT
Petitioner was the defendant in a criminal case pending in the judicial district of New Britain, Docket Number CR 97-0171510. In that matter petitioner was charged with: in count one, sexual assault in the first degree in violation of Gen. Stat. § 53a-70(a); in count two, sexual assault in the second degree in violation of Gen. Stat. § CT Page 11004 53a-71(a)(1) and in count three, risk of injury in violation of Gen. Stat. § 53-21.
Petitioner was additionally charged in geographical area #17 (Bristol) with sexual assault of another minor and on May 11, 1998, was convicted after a trial to the jury. Petitioner does not challenge the Bristol convictions in this habeas matter.
A trial in this matter commenced on March 3, 1999, before Judge William Murray and a jury of six. On March 16 and 17, 1999, the state presented its case-in-chief. After the state rested, petitioner presented four witnesses. The trial was then continued until the following day at which time petitioner had intended to present the testimony of four witnesses from Vermont. Although several of these witnesses had informed petitioner's attorney, Robert McKay, that they would willingly testify for the defense, none of the witnesses appeared when called. As a result McKay requested a continuance which was denied by the court. Thereafter McKay moved for a mistrial. Over the state's objection, the court ordered a mistrial and the jury was discharged.
A second trial was commenced on September 6, 2000 before Judge Carmen Espinosa and a jury of six. After five days of testimony, petitioner was convicted of sexual assault in the first degree, sexual assault in the second degree and risk of injury to a minor. On November 6, 1998, petitioner was committed by the court to the custody of the commissioner of corrections for a total effective sentence of thirty years.
The Supreme Court decision in State v. Merriam, 264 Conn. 617 (2003), sets out the facts underlying petitioner's convictions. "In May 1987, the victim, then a three and one-half year old female, lived in an apartment with her mother, her older sister, her sister's young daughter, and the [petitioner]. The [petitioner], who was the boyfriend of the victim's mother, had resided in the apartment since January 1987. The victim, whose biological father had passed away when she was seven months old, called the [petitioner], "Daddy." Between January 1987 and May 1987, no man other than the [petitioner] resided in the apartment. Furthermore, the victim's mother occasionally left the victim home alone with the [petitioner].
"Within a few weeks after the [petitioner] had moved into the apartment, the victim began to behave in a manner that was troubling and unfamiliar to those around her. In particular, within a few weeks after the [petitioner] began living with the victim and her mother, the victim began to exhibit sexual behavior inappropriate for a child her age. The victim's mother noticed that the victim often placed her hands down her pants. When the victim's mother bathed the victim, the victim would 'gyrate' while in the bathtub. The victim's sister also noticed that the victim repeatedly touched her genital area. On more than one occasion, the victim's sister observed the victim lying face down on her bed making 'up and down' motions with her body. Both the victim's mother and sister noticed that, during this time, the victim's vaginal area was irritated, red and swollen. They also noticed that the victim was very withdrawn, quiet and nervous. Although the victim had been toilet trained before the [petitioner] began living in the apartment, she thereafter began urinating in her bed at night. The victim had begun to suck her thumb so frequently that her thumbnail eventually fell off. Neither the victim's mother nor the victim's sister ever had seen the victim act in this manner before.
"Employees of the day care center that the victim attended also began to notice that the victim had been behaving strangely. They observed that the victim was extremely withdrawn and often had her hand in her pants. When employees at the day care center would rub the victim's stomach or back to help her relax during nap time, the victim would become 'very sensually aroused.' In addition, the victim cried after urinating.
"On or about May 12, 1987, Ida Yelding, a social worker employed by the day care center, noticed that the victim had her hands in her pants while she was moving her hips in an unusual manner. In Yelding's view, it was if the victim was approaching some sort of sexual climax. Yelding, who had worked at the day care center for more than thirteen years, never before had witnessed conduct of this kind by a child. Concerned about the victim's behavior, Yelding approached the victim and asked her what was wrong. The victim responded, 'Daddy.'
"Yelding immediately reported this incident to Carolyn Miranda, the director of child care programs at the day care center. Miranda thereupon went to the victim's classroom, where she observed that the victim was visibly upset. After speaking with Yelding and the victim, Miranda, who, in light of the circumstances, suspected that the victim had been sexually abused, filed a report that same day with the State Department of Children and Youth services (department), what is now the Department of Children and Families. In that report, Miranda revealed, inter alia, that the victim had stated to the teacher that " 'Daddy" touched her.' Miranda subsequently contacted the victim's mother.
"Thereafter, the victim's mother asked the victim what was wrong. The victim responded that 'Daddy' had 'hurt her.' The victim further indicated that the incident had occurred some time during the first two weeks of May 1987. When the victim's mother confronted the [petitioner] with this information, he denied that he had ever sexually abused the victim. Nevertheless, the victim's mother told the [petitioner] that she intended to notify the police, and, soon thereafter, the [petitioner], without explanation, vacated the apartment and left the state.
"On or about May 21, 1987, the victim's mother brought the victim to William Currao, a pediatrician, Currao performed a physical examination of the victim, including an examination of her genital area. That examination revealed various injuries uncommon for a girl of the victim's age, all of which were consistent with digital or penile penetration of the victim's vagina. In particular, Currao found that the victim's labia majora were red and irritated and that her hymen had been torn.
"On May 27, 1987, the victim and her mother met with Detective Lawrence Betterini of the New Britain police department. During an interview at the police station, the victim revealed to Betterini that the [petitioner] had touched her vagina with his penis.
"Betterini attempted to contact the [petitioner] to speak with him about the allegations of sexual abuse. In particular, Betterini spoke with several of the [petitioner's] family members and tried to contact the [petitioner] at various addresses but was unable to locate him. On June 4, 1987, Betterini obtained an arrest warrant for the [petitioner]. Continued efforts by the police to locate the [petitioner] were unsuccessful. The [petitioner's] finally was apprehended by state police in Vermont on September 13, 1997, and, thereafter, was extradited to this state." State v. Merriam, supra, 264 Conn. 622-25.
During both criminal trials, petitioner was represented by Attorney Robert McKay. McKay was admitted to the bar of the Commonwealth of Massachusetts in 1975. Thereafter he practiced law for a period of time in a small private firm and for nine years as an assistant district attorney (ADA) in Essex County. As an ADA, McKay tried thousands of cases in the District Court including sexual assault cases. He also specialized in the post-trial adjudication of "sexually dangerous persons." In 1987, McKay was admitted to practice in Connecticut and he has been a special public defender with contracts in five trial courts, in the Appellate Court and for habeas corpus matters since 1994. Prior to petitioner's criminal trial, McKay had tried two sexual assault cases in the judicial district of Hartford and was successful in obtaining an acquittal in each case.
In Massachusetts, if a person convicted of sexual assault is considered to be a sexually dangerous person, that individual is examined by a psychiatrist. Thereafter, a hearing is held to determine whether that individual should be housed in the Massachusetts correctional system or at Bridgewater State Hospital. McKay represented the commonwealth at those hearings.
McKay was privately retained by petitioner on October 20, 1997. At that time petitioner informed McKay that he had been arrested and charged with sexual assault in two cases, one pending in the Bristol court and one pending in New Britain. Petitioner indicated to McKay that he was not guilty of either case and he completely denied the factual allegations. With respect to the New Britain case, he additionally told McKay that he was not acquainted with the victim or the victim's mother, that he had never been to their house and that he had an alibi for the time period at issue. As to his alibi, petitioner informed McKay that at the time of the New Britain assault, he was residing in the state of Vermont and he gave McKay the names of several witnesses who could corroborate this fact. Petitioner additionally informed McKay that he had moved to Vermont sometime after he left the employ of Amodio Moving and Storage in 1986 and that he had been continuously employed in Vermont since then. On numerous occasions during his representation of petitioner, McKay asked petitioner to obtain written records such as tax records, pay stubs and motor vehicle registrations to corroborate his presence in Vermont during 1986-87. Despite these repeated requests, petitioner never gave any such records to McKay.
See footnote 3.
McKay followed up with all of the Vermont witnesses provided to him by petitioner and petitioner's mother including Donald Bevins, Bernard Kimball, Lee Martin, Clark Bell and Rania Bell. McKay, at his own expense, twice traveled to Vermont to interview these witnesses. Although each witness recalled seeing petitioner in Vermont in 1987, none of these witnesses was able to give McKay any written documentation corroborating petitioner's presence in Vermont during that time. Additionally McKay contacted Amodio Movers and was successful in tracking down records showing petitioner was employed there in 1986.
McKay testified that he spoke to petitioner's mother approximately once per week during his representation of petitioner and that if petitioner was unable to remember an event, McKay would ask the same questions of the petitioner's mother.
Also known as Lee Grace.
McKay spoke to Donald Bevins and Bernard Kimball three years before they testified in petitioner's criminal trial.
Prior to trial, McKay filed a motion for discovery and a motion for the criminal records of all state's witnesses. McKay filed these motions even though the State's Attorney's Office in New Britain had an "open file" policy. In addition McKay filed approximately twenty other pretrial and trial motions including a motion to dismiss based on the running of the statute of limitations, a motion in limine to preclude evidence of a videotaped interview of the victim and a motion in limine to preclude evidence of uncharged misconduct.
The state's open file policy permits defense counsel to inspect and, in some cases, photocopy the contents of the state's file including police reports and witness statements.
At the habeas trial, McKay testified that the long-form information filed by the state alleged the offenses occurred in 1987 yet petitioner was not arrested until 1997. McKay thought, therefore, that there was a colorable claim petitioner's due process rights had been violated by the lapse in time between the date of the offense and the date of the arrest. Thus McKay filed a motion to dismiss on the grounds that the statute of limitations had run. Once McKay researched the issue and spoke with petitioner, however, he believed that this claim was not meritorious. Ultimately the motion to dismiss was never argued or decided by the trial court.
At the criminal trial, the victim's mother testified that shortly after the victim's disclosure, the mother confronted petitioner with the allegations and informed him of her intent to report it to the police. The mother then testified that that same day, petitioner left her house and was never seen again. Also at the criminal trial, the victim in the Bristol case and her mother both testified that around the same time, petitioner visited them in Plainville and informed them that he and the New Britain victim's mother had broken up and that he was moving to Vermont. Betterini testified at the criminal trial and at the habeas trial that he made numerous unsuccessful efforts to find petitioner both before and after the arrest warrant was signed. These efforts included adding petitioner's name to the National Crime Information Center (NCIC), visiting addresses where he believed petitioner may have been residing, contacting petitioner's neighbors and family members including his mother and an ex-girlfriend. At one point Betterini received information that petitioner may have been in Canada, but this lead did not pan out. Finally in 1997, NCIC expanded their data base to include motor vehicle information from some states. Upon learning of this innovation, Betterini's partner, Detective Gary Shutt, ran petitioner's name in NCIC and learned that he may be living in Vermont. Shutt immediately requested that Vermont state police attempt to locate petitioner and they were successful. Thereafter petitioner was brought to Connecticut.
At the habeas trial petitioner claimed that the New Britain police had evidence of his address in Vermont and therefore could have executed the arrest warrant prior to 1997. Petitioner testified in 1989 he received a letter from New Britain police officer Lawrence Betterini requesting that petitioner contact him. Petitioner claims that in response to that letter, he called Betterini. Petitioner indicated that he argued with Betterini over the phone and then hung up. Petitioner also testified that his mother and his former girlfriend knew of his address in Vermont and that New Britain police could have obtained it from them. At the habeas trial McKay testified that he first learned of the existence of Betterini's letter from petitioner at the conclusion of the second New Britain trial. In his testimony, petitioner affirmed that he only informed McKay about Betterini's letter after the conclusion of the second trial. At the habeas trial, Luba testified that the New Britain state's attorney's office never had such a letter in its possession. Additionally Betterini testified that prior to 1997, he was not aware that petitioner was in Vermont.
At all times, petitioner told McKay that he was not acquainted with the victim or the victim's mother and that he had never been to their house in New Britain. Thus alibi and misidentification were the defenses McKay pursued. The long-form information alleged that the offenses charged occurred during a six-month period between January and May 1987. To assist in the preparation of the alibi defense, McKay attempted, without success, to get the state to narrow the date of the alleged offenses. Additionally during the first New Britain trial, McKay convinced the court to hold a suppression hearing on the issue of identification. For purposes of that motion, the court allowed McKay to seat petitioner in the gallery of the courtroom. When asked to point out the perpetrator of the sexual assault, neither the victim nor her mother were able to identify petitioner. In addition to the alibi and identification evidence, McKay employed a trial strategy of attacking the credibility of the victim's mother. In McKay's opinion, the mother's credibility was the key to the whole case since the victim had never, at any point in time, identified petitioner by his proper name or by photograph. To that end McKay cross examined the victim's mother with evidence of her drug addiction, her numerous felony convictions and the fact that she had numerous boyfriends living with her who had access to the victim during this time.
At the second criminal trial the victim testified first. She was now fifteen years of age and was unable to recall the details of the assault or the identity of the perpetrator. Additionally, she was unable to identify the petitioner as the person whom she had called "Daddy." McKay testified at the habeas trial that the victim's demeanor and appearance at the criminal trial were not an asset to the state's case. McKay described the victim as having poor articulation, wearing all black clothes and heavy black eyeliner and looking like "someone off the street." Consequently McKay decided to oppose the introduction of a videotaped interview of the victim prepared by the New Britain police in 1987. McKay reasoned that it would not help the defense to have a videotape showing the victim as a cute three-year-old in evidence and he was successful in keeping the tape out of evidence. McKay further described the interview on the videotape as a "terrible" interview in that it showed the victim's mother had answered most of the questions put to the victim, the mother had prompted the victim's answers and the victim had denied that her Daddy had touched her when no one was at home. Thus while the videotape evidence was potentially helpful to the defense, McKay believed that the danger in allowing the jury to see the victim as a three-year-old outweighed its impeachment value to the defense. Moreover, at the criminal trial, McKay cross examined Betterini on the deficiencies of the taped interview including the fact that the victim was sitting on the mother' slap during the video, that approximately ninety-five percent of the video was the mother talking and that at times the victim denied the petitioner assaulted her. To reinforce these points, in closing argument McKay argued to the jury that this whole case came down to the believability of what the mother told Betterini.
During the state's case-in-chief at the criminal trial, William Currao, a pediatrician testified that on May 27, 1987, he performed a physical examination of the victim. Currao testified that he observed a good degree of redness and irritation to the external genitalia and a tear in the hymenal membrane at the nine o'clock position. Currao further testified that the cause of the tear was a penetrating injury consistent with digital or penile penetration and that there would be pain associated with an injury of this sort to a three-year-old child. On cross examination, McKay was successful in getting Currao to admit that the victim did not name a perpetrator and that all of the history Currao obtained as to the cause of the injury came from the mother. Currao also testified that based on his examination, he was not able to determine when the injury occurred. Despite repeated efforts, McKay was not successful, however, in undermining the doctor's opinion as to the cause of the injury.
Although McKay moved for an acquittal at the close of the state's case and at the end of the trial, he chose not to challenge the sufficiency of the state's evidence on the use of force nor did he argue before the jury the insufficiency of the state's evidence on this element. McKay reasoned that in light of Currao's evidence, to argue force was not used in the assault would be distasteful to the jury and hurtful to the defense. McKay believed the better strategy, consistent with the alibi defense, was to concede that the child was assaulted but argue petitioner was not the assailant.
Between the time of petitioner's arrest in 1997 and the commencement of the second trial in September 2000, various offers were made to petitioner in an effort to settle this matter without a trial. The first offer which McKay recalls was a sentence of four years to serve. This offer remained open for over one year, but petitioner rejected it. Thereafter on February 11, 1998, petitioner was offered a sentence of one year, but rejected that offer too. In May 1998, petitioner was convicted of the charges pending in Bristol. Thereafter, during a judicial pretrial in the New Britain case, Judge Michael Dannehy extended a one day offer of three years to serve consecutive to petitioner's Bristol sentence. McKay credibly testified that he fully discussed each of the offers with petitioner but left it to petitioner to decide whether to accept any of the offers. According to McKay, petitioner clearly knew that his total exposure was forty years to serve. Nevertheless at all times petitioner insisted that he did not know the victim or her mother, that he was not guilty and that he was not interested in accepting a plea bargain.
McKay testified that he never hired any expert witnesses to assist him in preparing his defense. McKay reasoned that an expert could not help the defense because at all times petitioner insisted that he did not commit these crimes. Thus the defenses were alibi and misidentification, not that an assault did not take place.
After petitioner's conviction in the second trial, he filed an appeal with the Appellate Court. Pursuant to Gen. Stat. § 51-199(c) and Prac. Bk. § 65-1, petitioner's appeal was transferred to the Connecticut Supreme Court. During the appeal, petitioner was represented by Attorney Moira Buckley. Buckley was admitted to the bar of the state of Connecticut in 1997. At the time of petitioner's appeal, she was employed as a deputy assistant public defender and was assigned to the appellate unit. In the appellate unit, Buckley worked with a group of very experienced public defenders many of whom had twenty years or more of experience. Prior to taking on petitioner's matter, Buckley had prosecuted five or six appeals including an appeal of a murder conviction.
After being assigned petitioner's appeal, Buckley reviewed the record from the trial court. From the record, Buckley concluded that the strongest issues on appeal were the trial court's rulings on the admissibility of residual hearsay evidence and evidence of prior acts of misconduct. Buckley also noted that there was a colorable claim as to the sufficiency of the evidence on the element of penetration. Although Buckley did not believe this latter claim to be particularly strong, she believed it merited review. Buckley considered but chose not to raise the issue of the sufficiency of the evidence on the element of force. At the habeas trial, Buckley indicated that in her opinion there was no question the evidence was sufficient to prove force. According to Buckley viewing the evidence in the light most favorable to sustaining the conviction, as the Appellate Court would do, the victim's comments that Daddy had hurt her combined with the disparity in physical size between petitioner and the victim and the physical evidence of the torn hymen and redness in the external genitalia were more than sufficient to prove the element of force. Moreover, in Buckley's opinion, to attack the sufficiency of the element of use of force would have hurt petitioner's appeal by undermining her own credibility before the Supreme Court. Buckley reasoned that for some appellants, their attorney's credibility is the only thing that they have going for them on appeal.
Prior to filing her brief, Buckley consulted with Douglas Nash, supervisor of the public defender's appellate unit. Nash has more than twenty years experience as a trial and appellate defense attorney. Nash reviewed Buckley's brief and suggested certain changes which Buckley thereafter incorporated into the final brief. Ultimately petitioner's convictions were affirmed with one justice dissenting on the issue of the majority's conclusion that the erroneous admission of misconduct evidence was harmless error.
At the habeas trial Attorney Thomas Farver testified as an expert witness in the field of criminal defense practice. Farver opined if a defense attorney is presented with a situation that raises a good argument under the statute of limitations, he has a duty to file a motion to dismiss. Farver testified that based upon his review of the trial transcripts in petitioner's criminal trial, petitioner's case raised such a claim. Farver conceded, however, that he is not familiar with the steps that the New Britain police took to locate petitioner and also admitted that he had not spoken to Betterini or to McKay. Additionally Farver testified that unless petitioner had turned up as a "hit" in NCIC, there would have been no reason for Vermont police to contact Connecticut. Farver also conceded that in 1997 the police had many more tools to locate fugitives than in 1987. Farver further admitted that if the victim's mother had told petitioner of her intent to go to the police and within a few days thereafter, petitioner left the household, this would be evidence of flight to avoid prosecution.
At the habeas trial, petitioner also presented the testimony of Pamela Linder. Linder is a forensic and clinical social worker who has conducted forensic interviews of children who are the victim of sexual abuse. In Linder's career she has forensically interviewed many adolescents and school age children but only eight children aged four and under. Prior to her testimony in the habeas trial, Linder reviewed the videotape which was prepared by the New Britain police, binder opined that there were numerous deficiencies in the way Betterini conducted his interview of the victim. These deficiencies included the fact that the mother was present during the entire interview and, described, in front of the child, why she thought the victim had been sexually assaulted; the fact that at times when the victim's answers did not conform to her answers in a previous interview, she was reminded of her first answers; the fact that when the victim gave an answer which affirmed the allegations against petitioner, she was praised and when she did not, the mother's tone was different; and the fact that at times leading questions were asked of the victim. On cross examination Linder admitted that interview techniques had changed between 1987 and 2000. Linder also admitted that she had not spoken to McKay and had not read the trial transcripts and so was not aware of whether any of these deficiencies were brought out at the trial.
At the habeas trial petitioner testified that he did not commit the offenses against the victim because he was living in Vermont at the time. Petitioner claims that beginning in 1987, he worked for Twin City Roofing for nine and one-half years. Although he was paid "under the table," petitioner claims that the owner of Twin City, Donald Bevins, made him sign a weekly receipt for his pay. Petitioner also claims to have worked for a cheese making operation sometime in 1988 and to have paid taxes. Petitioner further testified that beginning sometime in the 1990s, he filed annual federal tax returns, and that his refund checks were turned over to the state of Connecticut for delinquent child support. Petitioner admitted that his Vermont license was only restored in 1996 after he served a suspension for operating under the influence. Petitioner admitted that he has been twice previously convicted for larceny. At the habeas trial petitioner did not introduce any written documentation to corroborate any of his testimony.
Petitioner attempted to introduce into evidence what he represented was his Vermont motor vehicle history. This exhibit was not properly authenticated, however; respondent objected and the objection was sustained.
At the criminal trial, petitioner's daughter testified that in the spring of 1987, petitioner was residing with the victim's mother in New Britain. More specifically, the daughter testified that on many occasions during her visitation with petitioner, he would be in the company of the victim's mother and that on other occasions she stayed with petitioner at the victim's house in New Britain. Petitioner's ex-girlfriend also testified that she met the victim's mother through petitioner and that in 1987, petitioner was residing with the victim's mother in New Britain. Additionally Officer Daniel McAloon of the New Britain Police Department testified that in May 1987, he was called to a domestic incident at the victim's mother's house. Present at the house were the victim's mother and petitioner and both parties claimed to reside at the house. Additional facts will be discussed as necessary.
DISCUSSION I. INEFFECTIVE ASSISTANCE BY TRIAL DEFENSE COUNSEL
Petitioner raises a myriad of allegations only slightly pared down by the withdrawal of three allegations at the close of the habeas trial. Nevertheless, there remain eleven allegations of ineffective assistance by McKay. These alleged failures are as follows: 1) failure to investigate and prepare the case for trial; 2) failure to properly explain a proposed plea agreement; 3) failure to file a motion to dismiss premised on the expiration of the statute of limitations; 4) failure to cross examine witnesses and introduce evidence to impeach their credibility; 5) failure to call relevant witnesses; 6) failure to challenge allegations there was sexual abuse and present evidence and argument that there was no proof of sexual abuse; 7) failure to challenge the accuracy of the police investigation; 8) failure to hire and use an expert witness in sexual abuse to challenge the propriety of the investigation; 9) failure to file a motion for acquittal on Count One on the grounds of insufficient evidence of the use of force; 10) failure to object to improper closing argument and/or request a curative instructions; and 11) failure to present effective closing arguments.
See footnote 2.
Based on these claims and the evidence presented, the court will combine the following claims for purposes of the discussions that follow below: 4), 5), 7) and 8) shall be addressed in the context of McKay's alleged failure to utilize an expert witness; and 6), 9), 10) and 11) shall be addressed in the context of the claim that there was insufficient evidence of the use of force.
A. LEGAL STANDARD
For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "In Strickland . . ., 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 . . ." Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 687-88. "Competent representation is not to be equated with perfection. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised . . . 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citation omitted; internal quotation marks omitted.). Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
The second prong of the test, known as the prejudice prong, requires "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, supra, 466 U.S. 687. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 799.
"It is well established that [a court] need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . To prevail on the prejudice prong, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . ." (Internal citations and quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 530-31 (2007).
B. FAILURE TO INVESTIGATE AND PREPARE CASE FOR TRIAL
There are two parts to the claim that McKay rendered ineffective assistance of counsel by failing to properly investigate and prepare the case for trial. First, that he was ineffective in causing the 1999 trial to end in a mistrial because of the failure to ensure the appearance at trial of the Vermont witnesses. Petitioner argues that if McKay had ensured their appearance and testimony at the 1999 trial, the 2000 trial, which resulted in petitioner's convictions, would not have been necessitated. Stated another way, petitioner claims that if the Vermont witnesses had testified at the 1999 trial, petitioner would have been acquitted. Second, that McKay failed to recognize that the alibi defense was not a strong defense. Instead, according to petitioner, McKay should have realized the weakness of this defense and should have advised petitioner to plead guilty instead of proceeding to trial.
"The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. State v. Talton, 197 Conn. 280, 297 (1985) . . . Chace v. Bronson, 19 Conn.App. 674, 680-81, cert. denied, 213 Conn. 801 (1989)." Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, cert. denied, 248 Conn. 905 (1999). "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. Holley v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001). Mere conjecture and speculation are not enough to support a showing of prejudice. Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, cert. denied, 275 Conn. 926 (2005)." (Internal quotation marks omitted.) Floyd v. Commissioner of Correction, supra, 99 Conn.App. 532.
Petitioner's alibi defense consisted of his claim that he resided in Vermont during the relevant time period. To that end petitioner gave McKay names of several witnesses, including Bernard Kimball, Donald Bevins, Lee Martin, Clark Bell and Raina Bell, who could corroborate this alibi. McKay twice traveled to Vermont to interview each of the witnesses provided by petitioner and his mother. McKay's investigation revealed that although these witnesses would be able to testify as to their own eyewitness observations, none of these witnesses was able to provide McKay with any tangible evidence that petitioner resided in Vermont in 1987.
Although these witnesses assured McKay of their cooperation and willingness to testify, none of them appeared to testify when called at the 1999 trial. As a result McKay moved for a mistrial which the court granted. At the second trial in 2000, again none of the Vermont witnesses appeared to testify. This time McKay was, however, successful in admitting into evidence transcripts of the depositions of Kimball and Bevins which corroborated petitioner's presence in Vermont throughout 1987. No evidence was adduced from Martin, C. Bell or R. Bell.
At the 2000 trial the jury had before it evidence of petitioner's alibi. This evidence, however, stood in stark contrast to the state's evidence by petitioner's daughter, ex-girlfriend and Officer McAloon that petitioner resided in New Britain at the time of the offenses. From the jury's verdict it is obvious that faced with these two diametrically conflicting versions, the jury rejected the testimony of Kimball and Bevins and accepted the testimony of the state's witnesses.
At the habeas trial, only petitioner's own testimony supported the alibi defense. There was neither documentary evidence that substantiated and lent credence to petitioner's self-serving testimony, nor did any of the Vermont witnesses testify. Thus petitioner has failed to show that their testimony in 1999, at best eyewitness accounts but not tangible corroborative evidence, would have overcome the state's evidence demonstrating petitioner's presence in New Britain in 1987. In light of the 2000 jury's rejection of petitioner's alibi evidence, it would be conjecture and mere speculation for this court to conclude that had petitioner presented this same evidence in 1999, the outcome would have been different.
As to the second part of the failure to investigate claim, petitioner claims McKay failed to recognize the inherent weakness of the alibi defense and, instead, should have advised petitioner to plead guilty. Between petitioner's arrest in 1997 and the 2000 trial, various offers were made to petitioner to settle the matter short of trial. Petitioner first rejected an offer of four years to serve and later, on February 11, 1998, also rejected an offer of one year to serve. Then, after petitioner was convicted of the Bristol charges, another offer was made that would have required petitioner to serve three years consecutive to the Bristol sentence. McKay credibly testified that he fully discussed these various offers with petitioner but that it was always left up to petitioner whether or not to accept an offer. Petitioner was well aware of his total exposure of forty years if convicted of all charges at issue in this matter.
It is through petitioner's own insistence that he did not know the victim or her mother and that he was not guilty, when viewed in conjunction with his own decision to not resolve the matter by plea, that the matter ultimately twice proceeded to trial. Petitioner here essentially argues that if he had known that he would be convicted, he instead would have resolved the matter by way of a more favorable plea agreement. Stated differently, petitioner now is viewing with the benefit of hindsight his own decisions with regret. In no way has he affirmatively shown to this habeas court the required prejudice by undermining the court's confidence in the outcome of the criminal trial.
Even assuming petitioner has shown McKay was somehow deficient, which he has not shown, petitioner has failed to show the required prejudice prong as to the claims that McKay did not properly investigate and prepare for trial. The credible evidence presented to this court shows that the only defenses petitioner asserted were alibi and misidentification. McKay thoroughly investigated these defenses and employed his best efforts to put on a successful defense at trial.
C. FAILURE TO PROPERLY EXPLAIN PROPOSED PLEA AGREEMENT
Petitioner claims that McKay failed to inquire of the court the specifics of the plea agreement, in particular the one-day offer of three years to serve consecutive extended to petitioner after he was convicted on the Bristol charges. Petitioner testified at the habeas trial that the court never explained probation, parole or special parole. The problem with petitioner's claim is that the evidence shows the offer was for three years to serve and did not encompass probation, parole or special parole. Thus, these are not specifics anyone would have inquired about in the first instance. Petitioner's claim that McKay failed to inquire about such non-existent specifics is wholly without merit.
D. FAILURE TO FILE MOTION TO DISMISS BASED ON STATUTE OF LIMITATIONS
Petitioner alleges that McKay rendered ineffective assistance of counsel because he failed to file a motion to dismiss Counts One, Two and Three of the operative information under a theory that the statute of limitations had expired. McKay did, however, file exactly such a motion to dismiss, though it was neither argued nor ruled on by the trial court. McKay's basis for filing the motion to dismiss was his conclusion that petitioner had a colorable claim that his due process rights had been violated by the lapse of time between the date of the offense and the date of the arrest. According to McKay, once he researched the issue and spoke with petitioner, he concluded that the basis for the motion to dismiss was not meritorious and, consequently, did not proceed on that motion. A recent Appellate Court decision, Thompson v. Commissioner of Correction, 91 Conn.App. 205 (2005), appeal dismissed, 280 Conn. 509 A.2d (2006), addressed a similar claim. The Appellate Court in Thompson agreed with petitioner's argument ". . . pursuant to State v. Crawford, 202 Conn. 443 (1987), and State v. Ali, 233 Conn. 403 (1995), that an arrest warrant must be executed without unreasonable delay. In th[at] case, the petitioner argue[d] that the delay between the issuance of the warrant and service of it on him more than nine years later was unreasonable. The petitioner contend[ed], therefore, that [his attorney] should have filed a motion to dismiss on the basis of the staleness of the warrant." Thompson v. Commissioner of Correction, supra, 91 Conn.App. 210.
"In State v. Crawford, supra, 202 Conn. 444-45, the defendant was charged with two misdemeanor offenses on the basis of an incident that occurred on June 5, 1983. An arrest warrant was issued for the defendant on July 22, 1983, but was not executed, and the defendant was not arrested until July 29, 1985, more than two years after the offenses were committed. Id., 445. The defendant filed a motion to dismiss, claiming that because he had not been 'prosecuted' within one year of the date of the offenses charged, as required by General Statutes § 54-193(b), his prosecution was time barred. State v. Crawford, supra, 445. The trial court denied the defendants motion to dismiss and, following the defendant's conditional plea of nolo contendere, the defendant appealed from the denial of his motion. Id., 446. On appeal, the Supreme Court held that the issuance of the arrest warrant on July 22, 1983, within the period of limitation provided by § 54-193(b) tolled the statute. Id., 447.
The underlying offenses occurred in 1987. Subsequently, § 54-193a was enacted by P.A. 90-279. § 54-193a states that: "Notwithstanding the provisions of 54-193, no person may be prosecuted for any offense, except a class A felony, involving sexual abuse, sexual exploitation or sexual assault of a minor except within thirty years from the date the victim attains the age of majority or within five years from the date the victim notifies any police officer or state's attorney acting in such police officer's or state's attorney's official capacity of the commission of the offense, whichever is earlier, provided if the prosecution is for a violation of subdivision (1) of subsection (a) of section 53a-71, the victim notified such police officer or state's attorney not later than five years after the commission of the offense."
"In so holding, the Supreme Court stated: 'When an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled . . . An accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation.' (Citation omitted; emphasis added.) Id., 450.
"The [ Crawford] court further recognized 'that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation.' Id. The court, therefore, adopted the approach of the Model Penal Code and concluded that "in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193(b), must be executed without unreasonable delay . . . We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations." (Citation omitted.) Id., 450-51.
"In affirming the denial of the defendant's motion to dismiss in Crawford, the court further concluded that the statute of limitations is an affirmative defense and that the burden is on the defendant to prove the elements of that defense by a preponderance of the evidence. Id., 451." Thompson v. Commissioner of Correction, supra, 91 Conn.App. 210-12, citing and quoting State v. Crawford.
The Thompson court concluded that petitioner in that matter had shown both deficient performance and the resultant prejudice. But the facts in Thompson are so easily distinguishable from the instant matter to warrant little further discussion. In Thompson, ". . . petitioner lived in Connecticut continuously from March 1989, through September 1998. The petitioner also stated that in the time between the issuance of the failure to appear warrant and his rearrest in this case, he was arrested fifteen times. In 90 percent of those cases, he was taken to the police station and interviewed. On the occasions when he was arrested between 1989 and 1998, the petitioner provided his current address and operator's license to the police, who also had his current address. He thought that the outstanding warrant had been dropped because the police never brought it up." Thompson v. Commissioner of Correction, supra, 91 Conn.App. 213.
Evidence at the criminal trial showed that petitioner fled the state of Connecticut after the victim's mother informed him she intended to contact the police to report petitioner's assault of the victim. Petitioner's relocation to another state tolled the statute of limitations and, given the facts of this case, there nothing is in the record that shows there was an unreasonable delay by the state in executing the arrest warrant. Betterini's testimony at both the criminal and the habeas trial evidences that the state exhausted various methods of locating petitioner. The credible evidence before this court in no way indicates unreasonable delay by the state. McKay's conclusion that the motion to dismiss was not meritorious is well-founded. Furthermore, it is readily apparent that investigative efforts employed by the state to defend against the motion to dismiss could have severely undermined or negated petitioner's alibi defense. The court finds, therefore, that petitioner has failed to show both deficient performance by McKay or that he was prejudiced.
E. FAILURE TO USE EXPERT WITNESS
Petitioner alleges that McKay rendered ineffective assistance of counsel by failing to effectively cross-examine witnesses, introduce evidence to impeach credibility of witnesses, call relevant witnesses, challenge the accuracy of the investigation conducted by the police through presentation of evidence and argument, and hire and use an expert witness in sexual abuse to challenge the propriety of the investigation. The essence of petitioner's claim to these conjoined claims is that McKay should have used an expert witness to show that the 1987 videotape interview prepared by the New Britain police was flawed, as well as to show that children can be made to engage in sexual intercourse without the use of force.
As indicated above, the court is combining these claims because the evidence presented at the habeas trial warrants conjoining them.
McKay testified that he did not want to have shown to the jury a videotape of a cute three-year-old girl. McKay described the taped interview as one that potentially was helpful to the defense because it showed the victim's mother answering most questions put to the victim, the mother prompting the victim answers and the victim's denial that her Daddy had touched her when no one was at home. McKay weighed these potential benefits against the potential harm of the jury seeing the victim as a three-year-old instead of as a fifteen-year-old at the time of the 2000 trial. Additionally at the 2000 trial, the victim was unable to remember the details of the assault, including the perpetrators identity. This inability to recall extended as far as the victim being unable to identify petitioner as the person whom she once had called "Daddy." McKay also believed that the victim's personal appearance at the time of the 2000 trial did not help the state's case, as the victim had poor articulation, dressed in black clothes, wore heavy black eyeliner and looked like "someone off the street." McKay made the decision to oppose the introduction of the videotaped interview and was successful in his efforts to have the tape kept out of evidence.
McKay also testified at the habeas trial that he did not hire an expert witness to assist the defense because petitioner insisted he had not committed the crimes. Petitioner's defense was not that an assault did not occur. Instead, petitioner's defenses were alibi and misidentification. McKay concluded that an expert witness would be of no material benefit to these defenses. Additionally McKay concluded that a challenge to the existence of the assault ran the risk of offending the jury.
Petitioner presented testimony at the habeas trial by Pamela Linder, a forensic and clinical social worker who has conducted forensic interviews of sexually abused children. Linder's own experience conducting forensic interviews of children aged four and under was limited to eight children, though her experience was much broader regarding adolescents and school age children. Linder testified to numerous deficiencies in the manner in which Betterini interviewed the victim. Linder acknowledged, however, that forensic interview techniques had changed between 1987, when the interview was conducted, and the 2000 trial. Linder additionally admitted that she had neither spoken to McKay nor reviewed the transcripts of the 2000 trial and, consequently, was not aware if McKay addressed any of these weaknesses at the trial.
"In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Bryant v. Commissioner of Correction, 99 Conn.App. 434, 439-40 (2007), citing and quoting Santiago v. Commissioner of Correction, 90 Conn.App. 420, 425, cert. denied, 275 Conn. 930 (2005), cert. denied sub nom. Santiago v. Lantz, U.S., 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006).
It is sheer speculation what the likely impact of the videotaped interview would have been on the jury. Petitioner has failed to prove that had McKay not attempted to prevent the videotaped interview from being admitted into evidence or, in the alternative, intentionally and purposefully used the tape, the outcome would have been different. McKay's tactical decision to not utilize the videotape is precisely the kind of decision that must receive deference by a reviewing court and is presumed to be sound trial strategy. Petitioner has not rebutted this presumption. McKay's decision not to utilize an expert witness is conduct that, given the circumstances of this case, falls within the wide range of reasonable professional assistance. The court finds, therefore, that McKay did not render deficient performance.
F. FAILURE TO CHALLENGE AND PRESENT EVIDENCE OF SEXUAL ABUSE
Petitioner alleges that McKay failed to challenge that there was sexual abuse, present evidence and argument that there was no proof of sexual abuse, file a motion for acquittal on Count One on the grounds that there was insufficient evidence of the use of force, object to improper closing argument by the state on the application of the statutory definition of force and/or ask for curative instructions, and present effective closing arguments incorporating that there was insufficient evidence of the use of force.
Again, these claims are being combined because the evidence presented at the habeas trial warrants conjoining them.
Central to these claims is petitioner's claim that there was insufficient evidence of the use of force. Petitioner's argument essentially is that the underlying facts of this case only in part meet a multi-part test enunciated in State v. DePastino, 228 Conn. 552 (1994). There the Supreme Court noted that "General Statutes 53a-70(a) in pertinent part defines sexual assault as compelling 'another person to engage in sexual intercourse by the use of force against such other person . . .' General Statutes 53a-65(7) includes within the definition of the term 'use of force' 'use of actual physical force or violence or superior physical strength against the victim.' The state contend[ed] that in light of this statutory definition, it could meet its burden of proof that the defendant had committed sexual assault in the first degree against the younger child by producing evidence that he had used superior physical strength to compel her to engage in sexual intercourse." Id., at 570.
"The state [in DePastino] presented evidence that the older child saw the defendant pull down the side of the younger child's crib and insert his penis into her vagina. The younger child cried during the sexual assault. A physician testified that the younger child's vaginal area was red, swollen and bruised. He also testified that the insertion of any object into the younger child's vagina would have been extremely painful. Considering the relative size difference between the defendant and his eighteen-month-old daughter, the injuries to her vaginal area, the fact that she was crying during the assault and the testimony of the physician that the assault would have been very painful to the child, the jury from the evidence reasonably could have concluded beyond a reasonable doubt that the defendant compelled the younger child to engage in sexual intercourse by using superior physical strength." Id., at 570-71.
Petitioner in the present matter essentially is arguing that the facts of his case are insufficient to meet the "test" in DePastino. There are two readily apparent flaws in petitioner's argument. First, the test is whether all the evidence shows that the sexual assault was committed by the use of superior physical strength to compel the engaging in sexual intercourse. This test can be met in many ways, either by a single evidentiary finding or multiple evidentiary findings that show "use of force" through the use of superior physical strength to compel sexual intercourse. Second, aside from the fact that in DePastino there was an eyewitness who testified the victim cried during the assault, the facts of petitioner's case are not that dissimilar from those in DePastino.
Currao's physical examination of the four-year-old victim showed that her labia majora were red and irritated and that her hymen had been torn. During the 2000 trial, Currao testified that he observed a good degree of redness and irritation to the victim's external genitalia and a tear in the hymenal membrane at the nine o'clock position. Currao also testified that the cause of the tear was a penetrating injury consistent with digital or penile penetration. Currao further testified that there definitely would be pain associated with an injury of this sort to a three-year-old child. Additionally both the victim's mother and the day care workers testified that the victim reported Daddy had hurt her. Viewing the evidence as a whole, there was more than ample evidence to support the jury's finding in count one that petitioner used actual physical force or superior physical strength to sexually assault the victim.
McKay testified that he made a strategic decision not to attack the element of "use of force" as to the sexual assault in the first degree. McKay also chose not to move for acquittal and not to argue before the jury the insufficiency of the state's evidence on this element. The strategy employed by McKay was to concede that the victim was assaulted but argue that petitioner was not the assailant, a strategy wholly consistent with the alibi and misidentification defenses proffered by petitioner. McKay additionally thought that if he argued force was not used, especially in light of Currao's testimony, that such argument would harm petitioner's defenses and that the jury would find that argument distasteful.
Based upon the foregoing, the court finds that McKay's strategy of not contesting the evidence a sexual assault occurred and not arguing the state failed to show the "use of force" and the strategic decisions emanating therefrom were reasonable given all the circumstances. McKay's performance did not fall below the objective standard of reasonableness. Instead, his performance falls within the wide range of reasonable professional assistance. Additionally petitioner has failed to prove that had McKay challenged the element of the use of force, the outcome would have been different. The allegations that McKay failed to challenge that there was sexual abuse, present evidence and argument that there was no proof of sexual abuse, file a motion for acquittal on Count One on the grounds that there was insufficient evidence of the use of force, object to improper closing argument by the state on the application of the statutory definition of force and/or ask for curative instructions, and present effective closing arguments incorporating that there was insufficient evidence of the use of force, are therefore all without merit.
II. INEFFECTIVE ASSISTANCE BY APPELLATE COUNSEL
Petitioner next alleges that he received ineffective assistance by Moira Buckley, his appellate attorney. First, petitioner avers that she failed to raise the issue that the evidence was insufficient to support the guilty verdict under Count One because there was insufficient evidence of force. Second, petitioner alleges that appellate counsel failed to raise the issue of prosecutorial misconduct in closing argument in that the prosecutor misstated the law.
A. LEGAL STANDARD
"The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . .
"To satisfy the prejudice prong, a petitioner must, thus, establish that, as a result of appellate counsel's deficient performance. there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt . . . In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different . . ." Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, cert. denied, 282 Conn. 908 (2007), citing and quoting Vivo v. Commissioner of Correction, 90 Conn.App. 167, 171-73, cert. denied, 275 Conn. 925 (2005).
B. FAILURE TO RAISE CLAIM PREMISED ON INSUFFICIENT EVIDENCE OF FORCE
Buckley reviewed the record of the criminal proceedings to determine the strongest claims on appeal. Her review led her to conclude that the most viable claims were the trial court's rulings on the admissibility of residual hearsay and petitioner's prior acts of misconduct. Buckley also concluded another claim worthy of appellate review was the sufficiency of the evidence on the element of penetration, though Buckley did not think that particular claim was a strong claim. Buckley did not raise a claim as to the sufficiency of the evidence on the use of force.
On appeal, petitioner claimed ". . . the trial court improperly had: (1) denied his motion for a judgment of acquittal on the ground of evidentiary insufficiency; (2) permitted the state to introduce into evidence certain hearsay statements in violation of his rights under the confrontation clause of the sixth amendment to the United States constitution; (3) permitted the state to introduce evidence of certain prior misconduct by the defendant; and (4) failed to investigate adequately his allegations of juror misconduct in violation of his federal and state constitutional rights to a fair trial." State v. Merriam, 264 Conn. 617, 622 (2003).
Buckley testified at the habeas trial that in her opinion the issue of penetration was almost frivolous. Nevertheless, Buckley raised such a claim on appeal and it was thoroughly addressed by the Supreme Court. The Supreme Court noted in its discussion of that claim that ". . . because the statutory provisions that prohibit forcible and nonconsensual sexual intercourse were designed to 'punish the fact, not the degree, of penetration'; . . . the 'least penetration of the body' is sufficient to satisfy the penetration element of this state's sexual assault statutes . . . Accordingly, [the court] recently . . . concluded that the penetration element of those statutes is satisfied by the penetration of the labia majora because penetration of the labia majora constitutes penetration of the body.
"Contrary to [petitioner's] claim, the evidence was sufficient to satisfy the penetration element of §§ 53a-70(a) and 53a-71(a), the sexual assault statutes under which the [petitioner] had been charged. The jury heard testimony that: (1) in May 1987, the victim was behaving strangely and in a manner suggestive of sexual abuse; (2) the victim repeatedly complained that 'Daddy touched her buggy,' 'used [his] buggy to touch her,' 'put his buggy into [her] buggy' and 'hurt' her; (3) the victim used the term 'buggy' to refer to genitalia; and (4) the victim referred to the defendant as 'Daddy.' The evidence also established that the victim's labia majora were red and irritated, and that her hymen had been torn, which, according to expert testimony, likely was the result of digital or penile penetration and indicative of sexual abuse. Based on the foregoing evidence, [the Supreme Court] concluded that the state satisfied its burden of establishing beyond a reasonable doubt that [petitioner] had engaged in sexual intercourse with the victim as that term is defined in § 53a-65(2). Consequently, the defendant's claim of evidentiary insufficiency fails." (Internal citations omitted.) State v. Merriam, supra, 264 Conn. 630-31.
Buckley further testified at the habeas trial that in her opinion there was no question as to the sufficiency of evidence to prove use of force. Given the appellate standard of viewing the evidence in the light most favorable to sustaining the conviction, Buckley concluded that the victim's comments that petitioner had hurt her, the disparity in physical size between petitioner and the victim, the physical evidence of redness in the external genitalia and a torn hymen were evidence of force. Buckley testified that in her opinion, a claim on appeal attacking the element of use of force would have undermined other more meritorious claims on appeal.
The court finds that Buckley's process of winnowing outright frivolous and weaker arguments having no chance of prevailing does not fall below the objective standard of reasonableness considering all of the circumstances. Petitioner's claim that Buckley was ineffective for failure to raise a claim challenging the sufficiency of evidence as to use of force, therefore, must fail. Additionally petitioner has also failed to prove the prejudice prong.
C. FAILURE TO RAISE CLAIM OF PROSECUTORIAL MISCONDUCT
Petitioner claims that Buckley failed to raise the issue of prosecutorial misconduct in closing argument in that the prosecutor misstated the law. Petitioner's premise is identical to the DePastino based claim against McKay. Essentially, petitioner claims Buckley should have raised a claim on appeal that the prosecutor misstated the law as to the use of force standard.
Petitioner claims that the prosecutor inflamed the jury's passions by arguing that the tearing of the hymen was evidence of the use of force. Petitioner's continued myopic view of the torn hymen as being the only evidence of use of force is unsupported by the facts of this case as already discussed above. Buckley concluded there was no merit whatsoever to raising a claim on appeal challenging the sufficiency of the evidence as to use of force because the trial record demonstrated exactly such evidence to sustain the conviction. The prosecutor's argument was not a misstatement of the law and, even if one were to assume it was, the trial court's instructions to the jury, which were neither challenged on appeal nor in this habeas, cured such error. Petitioner's claim that Buckley was ineffective for failing to pursue this claim is entirely specious.
Petitioner at the habeas trial withdrew claims directed at the trial court.
In its final instructions to the jury, the court correctly defined "use of force." Additionally the court instructed the jury that it was required to follow the court's instructions and that the arguments of counsel were not evidence.
III. PROSECUTORIAL MISCONDUCT
In the third count of his amended petition, petitioner's raises two claims of prosecutorial misconduct. First, that the state's attorney misstated the law on use of force in sexual assault and the application of the facts to that law. Second, that the state withheld exculpatory evidence, a letter from Detective Betterini to petitioner dated approximately 1989. As to the first of these claims, the court has already discussed at length the use of force standard and any effect a misstatement by the prosecutor might have had. Further discussion is not warranted, so the court finds, based on the preceding discussions, that the claim is without merit.
As to the second claim of prosecutorial misconduct, there was no evidence adduced at the habeas trial that even if this letter existed, it was ever in the state's attorney's file or possession. The sole evidence was petitioner's testimony that he had received a letter from Betterini requesting that petitioner contact him. Petitioner claims that in response to that letter, he called Betterini. Petitioner indicated that he argued with Betterini over the phone and then hung up. McKay testified that petitioner never informed him about any such letter until the conclusion of the 2000 trial. Moreover, Betterini credibly testified at the habeas trial that prior to the investigation conducted via NCIC in 1997, he was not aware that petitioner was in Vermont.
Succinctly put, petitioner has not presented any credible evidence that the purported letter even existed. Even if the letter existed, petitioner has not presented a scintilla of evidence showing the letter was in the state's possession. Petitioner's claim of prosecutorial misconduct premised on the letter must fail for lack of any evidentiary support.
CONCLUSION
Based upon all of the foregoing, the petition for a writ of habeas corpus is denied. Petitioner's counsel shall prepare and file a judgment file within thirty days.