Opinion
No. CV07-4001793
January 7, 2010
MEMORANDUM OF DECISION
THE COURT: We're back on the record regarding Mr. Roger Cote v. Warden. And the Court again wants to thank all counsel and the witnesses for their attention and patience in this matter.
This matter did proceed to trial last September 14, 2009, and we commenced evidence for a second day just two days ago, on January 5, the matter having concluded today on a third day of evidence.
The Court has reviewed the entirety of the exhibits, including all the transcripts and documents admitted into evidence, and they were substantial.
The petitioner introduced a number of transcripts from the underlying trial in the matter of State v. Roger Cote, a prosecution in the Judicial District of Windham, at Danielson, transcripts from court appearances on diverse dates, including but not limited to September 14, `04, September 15, the 17th, 21st, 22nd. All were admitted in full as Petitioner's 1 through 5.
Petitioner's 6 was a sentencing transcript by the sentencing Court, Judge Dannehy, on December 15 of `04. A pre-sentence investigation was reviewed in its entirety regarding Mr. Cote — that came in as Petitioner's 7 — and a number of other exhibits, which the Court will reference throughout the course of the Court's findings.
The Court in review of this matter does make the following findings: that the petitioner, Mr. Roger Cote, is indeed in the custody of the Commissioner of Corrections, having been a defendant in a prosecution known as State v. Roger Paul Cote, CR02-117846.
The defendant, Mr. Cote, now petitioner, was convicted following a trial before a jury in September 2004. The petitioner was convicted of assault in the second degree, threatening in the second degree, unlawful restraint, and violation of a protective order. The trial was presided over by the Honorable Judge Michael Dannehy.
At all times therein, Mr. Cote was represented by a special public defender, Attorney Mark Hauslaib, of Mansfield, Connecticut. The case was prosecuted by state's attorneys Mark Stabile and Bonnie Cewe-Bentley.
Following the convictions on the above-referenced charges, the petitioner was presented on a Part B information and pled guilty as a persistent serious felony offender.
On December 15 of `04, following argument and review of a pre-sentence investigation, the Court, Judge Dannehy, sentenced the petitioner to a total effective sentence on the referenced charges of twelve years state's prison, followed by six years special parole, to run consecutive to the petitioner's sentence he was then serving at the time for violation of probation, if I'm not mistaken.
The petitioner appealed his conviction unsuccessfully to the Court of Appeals of the State of Connecticut, which affirmed the conviction in a reported decision, State v. Cote, 101 Conn.App. 527, a 2007 decision by the Appellate Court.
The Court finds in that appeal, Mr. Cote was represented by Attorney Jennifer Vickery as a special public defender. Attorney Vickery has an office in New Haven, Connecticut.
The petitioner here makes a number of claims set forth, essentially, in a third revised amended petition dated August 9, `09 through his attorney, Mr. Robert McKay.
The first count alleges ineffective assistance of trial counsel, Mr. Hauslaib. Count 2 alleges what is termed prosecutorial misconduct. Count 3 is a claim of ineffective assistance of appellate counsel, Attorney Vickery; and lastly, Count 4 is a claim of actual innocence.
Suffice to say, the petitioner has set forth a myriad of claims stemming from the conduct of both his trial, appellate counsel, and also the prosecutor involved in the closing argument, which I believe was Attorney Bonnie Bentley, also known as Bonnie Cewe, C-e-w-e.
With regard to this claim of ineffective assistance of counsel — and this applies to both the trial counsel and appellate counsel — the petitioner's burden is Herculean and significant, as our Courts have stated.
There is a strong presumption of competent conduct by a trial attorney, and it is the petitioner's burden in this case to prove both deficient performance and prejudice in order to prevail on a claim of ineffective assistance of counsel.
The petitioner, of course, stands in a different footing than Mr. Cote stood as a defendant in a criminal matter accused with crimes, cloaked with the presumption of innocence. The petitioner now has been found guilty before a jury after a full trial.
In order to prevail, it is not sufficient that the petitioner establish deficient performance alone. The petitioner, as I said, must prove, also, prejudice.
So for the sake of discussion, if a Court were to find a deficiency but not find prejudice, the claim would fail; and by the same token, in the absence of prejudice, deficient performance alone would not create a scenario which would call for the relief requested by the petitioner, and that is a new trial or to be put into a position of receiving a new trial or in other relief, having sentence review.
Here, a number of claims are set forth in detail by petitioner's counsel as far as the ineffective assistance of counsel claim, and I will review each and the evidence which bears on each allegation in the interest of completeness.
Paragraph 6 and its subparagraphs allege that the petitioner's due process rights were impaired or he was deprived of those rights, and the Court infers due process to imply both due process under the Connecticut Constitution and the United States Constitution.
And again, in order for the petitioner to prevail, the Court must conclude that there was some fundamental unfairness; that the trial was tainted, and in essence, Mr. Cote was deprived, in a constitutional sense, of a fair trial.
Count 6-A alleges that trial counsel failed to subpoena or otherwise arrange to have Janet Cote and David Cote as defenses witnesses available to testify on behalf of the petitioner.
In review of this claim, it is clear; the Court heard testimony from a number of witnesses, not the least of whom were Janet Cote, David Cote, but also the attorney, Mr. Mark Hauslaib, and also the petitioner, Mr. Cote, and a number of other witnesses whom the Court will reference in the course of this decision.
With regard to Mr. Hauslaib, Mr. Hauslaib testified on September 14 that he represented Mr. Cote in his trial and at the time had been an experienced criminal lawyer representing individuals accused of crimes, misdemeanors and felonies.
He was admitted to the bar in approximately 1993, [sic] had worked in the counties of New London and Windham for a number of years, had been a trial lawyer, essentially, for twenty-six years at the time. And he had some familiarity with Mr. Cote, having represented him some ten years prior.
Although Mr. Hauslaib recalled in a general sense representing Mr. Cote in 2004, by his own admission, he did not recall many details of specific acts he did or did not do; however, when questioned on cross-examination, direct, redirect, certain of Mr. Hauslaib's recollections were refreshed.
The Court would note, Mr. Hauslaib credibly testified that he's been a sole practitioner for a number of years and has occasion and had occasion to try cases in the courts before and since representing Mr. Cote in 2004.
It is not at all surprising that an attorney with a normal caseload might not recall every aspect of representing a client some five or six years prior to coming in here, hailed in this habeas corpus petition.
That notwithstanding, the attorney credibly testified that he, in the course of this case — and it's helpful to set forth the context in which these claims are made. Mr. Hauslaib obtained copies of all documents germane to the prosecution of Mr. Cote, all police reports, all statements, all the evidence.
He reviewed those, and he also reviewed the substance of those and the strengths and weaknesses of the state's case with his client, Mr. Cote. In large part, the Court accredits Mr. Hauslaib's testimony that the bulk or essence of the conferences with his client occurred at court in Danielson.
The Court finds that Mr. Hauslaib certainly became aware of the allegations, which essentially involved Mr. Cote's girlfriend alleging that Mr. Cote came home one late evening/early morning, and in the early morning hours of December 23, 2002, held her at knifepoint, attempting to force her to engage in oral sex, and pressed the knife to her neck and chest, threatening to do her harm if she did not comply with his demands.
In the course thereof, the victim, identified as A.D., credibly testified — both at trial before a jury and this Court — that she was in fear for her life and safety and felt certain discomfort and fear, as well as sustaining some type of neck injury which resulted in a degree of blood on her neck, a cut or scrape, and certainly emotional distress as a result of the incident.
The attorney reviewed the allegations, including the fact that a knife was turned over to the investigating police, in particular Trooper Blanchette. It's noted that the knife was turned over sometime later, following the claimed event. The Court finds there was no DNA or forensic analysis of the knife.
The Court finds that Mr. Hauslaib obtained a version of the event and talked with his client, who denied using the knife, brandishing the knife, or pressing it against any part of A.D.'s person.
The Court finds further that Mr. Hauslaib was familiar with the criminal history of Mr. Cote, which included felonies, including larcenies, burglaries, significant time spent incarcerated.
Mr. Hauslaib represented Mr. Cote in a matter which eventuated into a plea bargain of twenty-four years, suspended after fourteen years, for which Mr. Cote pleaded guilty and served significant time, in excess of ten years state's custody.
It's clear that Mr. Cote took a very active and vigorous role in his own defense, encouraging his attorney to pursue certain leads, certain evidence, not the least of which was to talk with members of Mr. Cote's family, some of whom have already been referenced.
The Court finds that Mr. Hauslaib did, in fact, employ an investigator, utilized that investigator to review evidence, assist him in the defense of the case against Mr. Cote. The Court acknowledges that Mr. Hauslaib could not recall using an investigator, but the Court accredits Mr. Cote's own testimony an investigator was, in fact, utilized.
And the Court also finds that there was apparent — shall we say — disagreement as to the length to which the investigator would be used; and Mr. Hauslaib, as is the province of the trial attorney, was, in essence — to use a sports analogy — the quarterback on this defense team, and it was up to him as the trial lawyer to decide legal tactics and strategy.
It's notable — and the Court has not indicated — that as a result of Mr. Hauslaib's efforts, Mr. Cote was found not guilty of a sexual assault charge, and the Court cannot stress enough the significance of that outcome. Mr. Hauslaib, by his own admission, focused a lot of effort on the sexual assault charge.
He was aware that there were two statements submitted by the complainant, one early in time to the event, a second, which apparently resulted following some discussion where the complainant, A.D., did not appreciate that a potential sexual assault occurred.
The Court accredits the complainant's testimony here in this habeas proceeding two days ago, where the complainant believed a sexual assault or rape involved penile-vaginal penetration with clothes being ripped off and the like, popularized in certain media and literature.
The Court finds that Mr. Hauslaib indeed prepared a defense to this case, and the Court echoes comments it made earlier during the closing by Mr. McKay that the defense attorney need not ask a question, question any witness, present any witness, let alone experts or laypeople.
It is up to the government to prove an accused individual guilty of all of the essential elements of a crime. It is not up to the defendant to prove his innocence.
Here, Mr. Cote took an active role, apparently declined a plea offer, and this Court finds that Mr. Hauslaib, in fact, recommended that Mr. Cote accept the plea bargain for a term of jail less than he was eventually given. And it was Mr. Cote's decision to proceed to trial, and in so doing, Mr. Hauslaib did develop a strategy of defense.
Here, he aggressively cross-examined the complaining witness, brought out aspects in the background of A.D., including drug use, her unstable social life. Attorney Hauslaib attempted to inquire about mental health history, including potential bipolar disorder, which the Court need not define further here other than to state that the trial judge barred such inquiry.
The Court also accredits the attorney's testimony that whether to call a witness is indeed a matter of trial strategy, and certainly, Mr. Hauslaib — and this Court finds — did speak with family members, including David Cote, Janet Cote about various aspects of his case and for his reasons decided not to present those witnesses.
The petitioner, in essence, wants this Court to view the testimony of the family members — all of whom were consistent to the letter — that A.D. had admitted to these individuals, David and Janet, that she lied on the stand when testifying about the conduct of Mr. Cote, and she lied because she feared her children being taken away by the State of Connecticut Department of Children Families or some similar agency.
Suffice to say, where an attorney decides not to call a witness, that is a tactical decision that is left within the judgment of the attorney.
Here, this Court will presume at some point it was decided that Mr. Cote would testify and admit certain aspects of the events of this early morning. In addition, the complainant testified.
So essentially, the jury heard from both individuals present at the time of the alleged assault. There was no minor child present or within the area immediate to this event who could offer evidence on the claimed assault.
The most the family members could offer would be cumulative evidence that the complainant was lying. The family members would obviously be facing cross-examination themselves for bias, interest, and even potential to fabricate.
This Court makes a finding that there was at least a conversation between David Cote and A.D. wherein A.D. informed David Cote that Roger did not rape her — rape her in the sense of penile-vaginal penetration following a struggle — but that a sexual assault, as she had been educated, had, in fact, occurred, the assault — as the witness described it to this Court two days ago — with Mr. Cote attempting to force the complainant to perform oral sex against her will; and arguably, that could be a sexual assault. The jury found otherwise.
So this Court would not disturb the judgment of the trial attorney in not calling family member witnesses of the petitioner, where the complainant herself was before the jury, subject to vigorous cross-examination.
Cross-examination, as I've said in the past, of a sexual assault victim or complainant is a slippery slope indeed and one fraught with many potential problems, and the trial lawyer has to make the judgment of how aggressive to conduct that examination, whether to bring in witnesses in an attempt to assail the character of the witness.
Suffice to say, such evidence is normally not allowed for the reason that trial Courts will bar character evidence including social history, economic condition, and propensity to use substances. Indeed, the trial Court barred any inquiry about a claimed bipolar disorder.
A habeas case is not a microscopic analysis in hindsight of decisions made by a trial lawyer. A petition for writ of habeas corpus, as well, is not an opportunity to review a trial record in an attempt to find post-conviction error in a transcript.
Counsel need not present every witness. A failure to call a witness does not constitute ineffective assistance unless there's a showing that the testimony would have been helpful in establishing the asserted defense. That's from State v. Talton, 197 Conn. 280, a 1985 Connecticut Supreme Court decision.
This Court finds the allegation in Paragraph 6-A unproven. It is notable that Janet Cote testified before this Court, as did David Cote, on two occasions, and there were a number of inconsistencies between these witnesses, who was present when certain statements were made about what A.D. said.
This Court admits that in listening to the testimony of Janet Cote, in particular, Mrs. Cote was quite composed and focused in her answering of questions. That notwithstanding, it does strain credulity to think that a complainant in matters such as this would essentially be talking to a number of family members and in each instance volunteer that, A, she lied — which is a strong statement — and B, she did so because she feared her children being taken away.
This Court had the opportunity to view the demeanor of each and every witness, including A.D., and there was nothing in the testimony or appearance of A.D. which suggested to this Court that A.D. was lying, mentally unstable, unsure of her recollections of the early morning of December 23.
Suffice to say, the witness was extremely credible, withstood lengthy cross-examination or examination by counsel for the petitioner, and was quite composed. And indeed, if she has some psychiatric history and drug use history, none was apparent to this Court, where the witness was quite firm and composed and consistent in her testimony, and as was noted by respondent's counsel, consistent with the statement that was given to the police or statements given to the police contemporaneous with the events on the date in question in 2002.
This Court does accredit A.D.'s testimony before the Court that she denied ever telling anyone she lied, let alone lied because of fear of losing her children. This Court will not find ineffective assistance of the trial attorney's decision not to call the two family members, David and Janet Cote.
With regard to the allegation 6-B, that counsel was deficient for failing to investigate the chain of custody of the knife offered into evidence, this — and that somehow the petitioner was prejudiced thereby, this Court finds that claim to be unproven in that there was no evidence offered of a forensic nature regarding the knife or chain of custody would have been in any way important or significant from either a prosecution or defense standpoint.
There was credible evidence, both at trial and before this Court, that the knife was handled by a number of individuals, including the complainant's son, who had occasion to fold the knife, and it was out of police custody for a time between the event complained about and the time it was actually submitted to Trooper Blanchette; so there is no deficient performance in that regard. And the petitioner is — further — not prejudiced by that.
The Court finds unproven Allegation 6-C, that trial counsel failed to explain to the petitioner the elements of each and every criminal offense of which he was charged. This Court accredits Mr. Hauslaib's testimony that it was his custom to review all charges against Mr. Cote or any clients. This Court finds that he did so.
This Court finds further that Mr. Cote at the time he went to trial was a fairly intelligent man — with an education formerly in excess of the tenth grade and also Mr. Cote having availed himself of college courses during a significant period of his incarceration — and displayed before this Court an ability to understand the proceedings and certainly answer questions.
And the Court can infer he no doubt had a lot of involvement in his case and was apprized of the elements of each and every crime for which he was charged.
Paragraph 6-D alleges that trial counsel failed to object to the introduction of the one written statement of the victim when counsel knew there existed two contradictory written statements. This Court acknowledges that two statements were given by the complainant, A.D. However, it was for counsel to decide — and he credibly testified — that he chose not to object, and it is again, a matter of trial court tactics when to object to admissibility.
And if I'm not mistaken, the statement regarding sexual assault did not come in before the finder of fact, and it would be harmful indeed if counsel were to draw attention to a statement alleging sexual assault. Again, the petitioner was found not guilty of sexual assault.
And the witness was cross-examined on the fact that she gave two statements to the police at two different times, so the absence of a second statement before the jury is really of no consequence, where this Court finds that petitioner's counsel was adequately able to cross-examine on that issue; and therefore, that was another basis upon which the jury could judge the credibility of the complainant.
Not to digress, but essentially, these types of cases — in my view — come down to a very simple aspect: whom to believe, the complainant or the defendant. And when both are before the finder of fact, it really becomes that simple. If — the jury decides who it's going to believe. And one can attempt to attack a complainant with all kinds of ammunition regarding ability to recollect or relate events, but the central question for a jury becomes why would an individual lie about a complaint?
And the defendant, by the same token, seeks to have a jury conclude that the complainant is manufacturing this for some secondary gain, whether it's a change in living arrangements because of a relationship gone wrong or something else.
And as I have often counseled individuals over twenty-one years in criminal practice defending individuals, it is a hard conclusion to conclude that a person would take an oath, testify under penalties of perjury to the ruination of another individual and to testify falsely.
It would take a unique individual, indeed, to do that, and so that becomes the central issue for a jury. I acknowledge that it can happen and does happen, but that's what a case boils down to. With regard to this case, 6-D is unproven.
With regard to 6-E, petitioner alleges that trial counsel failed to adequately cross-examine the complaining witness in regard to inconsistent testimony in the two written statements. For reasons already indicated, this Court finds that claim to be unproven.
Effective assistance of counsel, as the case law states, is not to be equated with perfection. Effective assistance of counsel means that the defendant be afforded a competent attorney who protects his rights vigilantly in the effort to attempt to win an acquittal, and again, the Court cannot turn a blind eye to the not guilty on the sexual assault case.
And I'll comment later about aspects of sentencing, where, in this Court's view, the outcome could have been far worse than it was for Mr. Cote.
6-F alleges that trial counsel failed to argue motions in limine about prior misconduct or prior convictions and failed to attempt to prevent the state from introducing same during the testimony.
The law is clear that in order to prove ineffective assistance of counsel for a claimed failure to file a motion to suppress, the petitioner must show that had counsel filed a timely motion to suppress, there would have been a reasonable probability that the motion would have been granted or a motion in limine here would have been granted, and that has not been shown.
Evidence of prior bad acts was admitted; however, it's clear it was a proper ruling under law, and had counsel attempted to file a motion in limine, this Court cannot conclude that a reasonable jurist would have granted it. Evidence of prior bad acts, evidence of prior convictions do come in where they are offered for a relevant purpose. 6-F is unproven.
Where such evidence was properly offered, presumably on the issue of motive, counsel is directed to the case of State v. Lopez on that issue.
With regard to the allegation of 6-G, it's alleged that counsel was ineffective for failing to object to the prosecutor's closing argument where the prosecutor misrepresented to the jury that blood was pouring from a knife cut.
Attorney Hauslaib credibly testified — and I went over my notes, and I recall the testimony clearly — that in his experience, he recalled one time objecting to a closing, and it is an unusual event to object to a closing for the reason that whenever you object — if you lose, if you win — you necessarily draw attention to the claimed transgression; and so you run the risk of causing further harm.
And here, with regard to this comment, although this Court finds that the prosecutor's comment was a stretch — to say the least — of the evidence, it does not rise to the level of misconduct when the evidence was clearly sufficient to establish guilt, and furthermore, in looking at the trial in the totality, the petitioner was not deprived of a fair trial.
This Court cannot conclude that a jury would have been so overwhelmed by the comment in closing by a prosecutor such as that made here as to invade the province of the jury and wrestle control over the jury's mind to substitute the prosecutor's judgment for that of the jury.
Indeed, when the prosecutor or any advocate overstates the significance of a particular piece of evidence, he or she in this instance runs the risk of losing credibility for the reason that if a juror recalled the absence of oozing blood on the knife, on this one point, the jury might well conclude that the prosecutor was exaggerating in other contexts.
So this Court accredits the tactical reason explained by Mr. Hauslaib on why not — why refrain, rather, from objecting to improper argument. And even if misconduct or error, this Court concludes that it was not harmful or enough to warrant a new trial; hence, 6-G is unproven.
6-H alleges that trial counsel did not adequately prepare the defense in failing to have a state lab analyze anything for DNA evidence. There is no evidence before this Court that had such analysis been undertaken, such analysis would have borne fruit in some way to benefit the petitioner.
Counsel has already referenced the case with which both counsel are familiar, and that is Holley v. Commissioner of Corrections, 62 Conn.App. 170, a 2001 decision, where the Appellate Court held that the petitioner must show what benefit additional investigation would have revealed.
This was not a DNA case, and it really was of no consequence for not analyzing the knife for DNA.
6-J alleges that counsel failed to file a motion to suppress the knife because of the absence of DNA evidence. This Court has already commented about the law on the issue of motion to suppress. It has not been shown that had a motion been filed, any evidence would have been suppressed under any theory to be advanced; therefore, 6-J fails.
6-K alleges that trial counsel did not adequately prepare for sentencing, and in review of the PSI — in particular, about the past history of domestic violence — this Court read several times the full length of the pre-sentence investigation report in evidence and also the transcript of the sentencing proceeding before Judge Dannehy.
And suffice to say, the brevity of the sentencing comments by the Court was remarkable, and it's not clear exactly — beyond the evidence which the Court observed itself — what influenced the Court in sentencing Mr. Cote.
I note that Mr. Cote, if I'm not mistaken, was sentenced to five years on one count, five on another count, two on a third, all consecutive, for twelve years consecutive to the sentence he was serving.
The Court referenced Mr. Cote's history, and in particular, his lengthy incarceration and absence of any particular dysfunction during his upbringing.
I note for the record, Mr. Cote has two of his brothers present here today, both of whom has testified, and this Court had opportunity to witness and hear from both of Mr. Cote's parents.
And so the testimony of family members bear out Judge Dannehy's comments at sentencing that there did not appear anything remarkable in the upbringing of Roger Cote to explain Mr. Cote's transgressions with the law. The Court seemed to focus on the terror on the early morning of December 23 experienced by A.D., but also what the Court viewed was a continual pattern of non-compliance with authority and the law.
It is significant that there was violation of a protective order. It is significant that Mr. Cote wrote a letter, albeit to his mother, intended for the victim, when he knew he was to have no contact with the victim. And it is those factors which this Court views led to the sentence.
The Court notes that the reference to domestic discord or history of domestic violence was very brief and in this Court's view relatively insignificant. And any modification, amendment of that reference really would not likely have changed the outcome. For those reasons and for reasons I'll comment further on L to follow, this Court finds 6-K unproven.
The Court accredits the attorney's testimony that he did review the pre-sentence report prior to sentencing. Comments at sentencing reflect an attempt to bring out positive aspects of Mr. Cote.
The Court finds unproven 6-L, that trial counsel failed to advise and explain to the petitioner his right to sentence review. In evidence in the record is comments by the clerk that Mr. Cote was advised of his right of sentence review.
And I wanted to take time to note for a moment that Mr. Cote did not receive the full amount of sentence possible to him. And pursuant to Practice Book Section 43-28, the Sentence Review Division in its review is limited in scope as to whether the sentence imposed should be modified because it is inappropriate or disproportionate in light of the nature of the offense, the character of the offender, the protection of the public interest, and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended.
This Court notes that at sentence review, the Court has the option to lower, leave alone, or in fact, raise the sentence. And as recently done by the sentence review a couple of terms ago, it raised the sentence significantly for an applicant.
This Court finds that no panel of jurists upon review at sentence review would find this sentence imposed in any way disproportionate or inappropriate. On the contrary, this Court finds that a sentence review panel might very well raise and increase Mr. Cote's sentence significantly, and had Mr. Cote been before this Court following a trial on these facts, I will offer the opinion that this Court would have sentenced Mr. Cote to the maximum allowable under law, a far greater term than that which he is currently serving. This Court finds unproven any prejudice and no deficient performance.
The Court can't avoid commenting that Mr. Cote — by his own testimony in this proceeding — in this Court's opinion still does not appreciate the gravity of the early morning of December 23. When Mr. Cote has the temerity to take the stand and say to the Court on occasion he carries a knife, and if he thought that A.D. had something to do with the death of his child by miscarriage or otherwise, he wouldn't hesitate to do harm to her or something of the like leads this jurist to believe that Mr. Cote just doesn't understand the gravity of what social, proper conduct is required for individuals in a free society.
The Court can only speculate because of longtime incarceration and perhaps his employ as a bouncer or for some other purpose not comprehensible, Mr. Cote just doesn't understand the gravity of that.
The Court does not accredit Mr. Cote's testimony that he knew all of the consequences on the morning of December 23 but rather accredits Mr. Cote's own words that are in the transcript that was introduced into evidence today on the violation of probation before Judge Foley, where in this Court's opinion Mr. Cote was honest with himself and others, where he said when he consumed steroids and drugs, he was out of his mind and out of character.
And those were Mr. Cote's words before Judge Foley, as opposed to his words today before this Court. Because I don't believe that Mr. Cote is an evil man. I believe that Mr. Cote just doesn't appreciate certain aspects of the wrongfulness of his conduct, but I do believe that he was in an altered state significantly and did horrible acts which he would not do in a sober state.
Lastly, with respect to Paragraph 6, the Court finds unproven allegation 6-M, that counsel failed to assist the petitioner in filing an application with sentence review. For the reasons already indicated, this Court finds no prejudice. Had he gone to sentence review and this judge was on the panel, his sentence would be increased.
With regard to Count 1, it has not been proven. There is no deficient performance. There is no prejudice.
With regard to Count 2, prosecutorial misconduct, this Court has already commented that the comments by Attorney Bentley at closing about blood oozing on the knife do not rise to the level of misconduct warranting a reversal or error which can be deemed harmful, leading this Court to conclude that Mr. Cote was deprived of a constitutional right to a fair trial. Count 2 is unproven.
With respect to ineffective assistance of appellate counsel, Count 3, Attorney Vickery credibly testified on January 5, albeit without a file, that it was her custom to review the file prior to reviewing any claims for appeal. She recalls Mr. Cote taking a vigorous role in preparation of the appeal, emphasizing the desire to go forward on a speedy trial claim, which was, in fact, advanced.
This Court accredits Attorney Vickery's testimony that she had experience doing appeals, both in the state and federal courts. She indeed is experienced in habeas matters, and it was her tactical decision to raise what she felt was a viable claim. She did review this case for the purpose of sufficiency of evidence and chose not to pursue such a claim.
The Court notes and accredits her testimony that she considered filing a so-called Anders brief, essentially stating that there were no non-frivolous issues but did not do so, Anders v. California, 386 U.S. 738, a 1967 United States Supreme Court decision establishing constitutionally required procedures to be followed by counsel and Courts in cases in which counsel believes that appeal is frivolous.
Counsel is also directed to Vazquez v. Commissioner of Correction, 88 Conn.App. 226, a 2005 decision of the Connecticut Appellate Court.
Here, the Court accredits Attorney Vickery's testimony that she reviewed the record for any potential error, preserved and unpreserved, and advanced that which she thought was viable. This Court, under the case of Small v. Commissioner, cannot conclude that had Attorney Vickery advanced any other claim that the claim would necessarily have been likely to prevail.
The standard for habeas corpus in the context of an appellate attorney is just that, that in order to prevail in a claim of ineffective assistance of counsel involving appellate counsel, petitioner must show that there was reasonable probability that but for appellate counsel's errors, the petitioner would have prevailed in his direct appeal, Small v. Commissioner, 286 Conn. 707, a 2008 Supreme Court decision.
The Court finds that Attorney Vickery discussed the claim with her client, Mr. Cote, reviewed the claims, advanced that which she thought might be successful. And for those reasons, the Court finds unproven Count 3.
Lastly, the claim of actual innocence. In order to prevail on the claim of actual innocence, it must be based upon newly-discovered evidence, which is defined as evidence that could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence, Johnson v. Commissioner of Correction, 101 Conn.App. 465, a 2007 decision.
Here, I suppose the claim of actual innocence is premised upon two potential theories, one having to do with the revelations by family members David and Janet Cote that A.D. stated to them that she lied in order to avoid having her children taken away, or secondly, potential DNA evidence or analysis, the outcome of which is totally speculative given an absence of any here in this forum.
The Court finds an absence of any new evidence, so-called, under our case law to justify a finding of actual innocence. Suffice to say, this Court finds an absence of deficient performance by the trial attorney or the appellate attorney.
On the contrary, this Court makes a tacit finding that each attorney was diligent, conscientious, and professional, and not deficient in the course of their employ.
What's more, this Court finds sufficient evidence to support a finding of guilt on all of the charges for which Mr. Cote was convicted and finds that the complainant, A.D., could indeed be most believed before a jury.
It's not for this Court, it's not for this forum to retry the case. Indeed, the Court will not disturb a finding of a jury where there's been no showing of manifest injustice.
And for all of those reasons, in all respect, Mr. Cote, the petition for writ of habeas corpus is denied. Judgment may enter in favor of the respondent. If there is to be an appeal, petitioner is to file a judgment file within thirty days.
I'm requesting a transcript of this on-bench ruling be prepared for my signature. It shall constitute a memorandum of decision.
I'm requesting, also, that notice of appeal rights be prepared.
The record shall reflect the Marshal has handed notice of appeal rights to Mr. McKay, who at this moment is showing them to Mr. Cote. With that, this matter is concluded. Court stands adjourned until 10 a.m. tomorrow morning.
(The matter was concluded, and court was adjourned.)