Opinion
No. CV 04-4000190
August 26, 2010
MEMORANDUM OF DECISION
On November 2, 2004, the petitioner filed a petition for a writ of habeas corpus, which was amended on January 16, 2009 and again on January 20, 2009. He claims in Count 1 that he was denied effective assistance of counsel at the trial level, and in Count 2 that he was denied the same by his appellate counsel, both in violation of the sixth and fourteenth amendments to the United States Constitution, and article first, §§ 8 and 9, of the Constitution of the State of Connecticut. He specifically claims that his trial counsel failed to conduct sufficient consultation regarding the state's medical proof, meaningfully challenge the state's medical personnel, present medical testimony to support petitioner's claim of innocence, introduce medical reports concerning the complaining witness's behavior and mental health, object to constancy of accusation witnesses, and object to the state's attorney's cross-examination of the defendant (petitioner). He further claims that his appellate counsel failed to raise as an issue the trial court's overruling of defendant's (petitioner's) objection to allowing the constancy of accusation witnesses to testify that the complainant told them about oral, anal, and vaginal contact, and failed, when he presented the prosecutorial misconduct claim regarding the prosecutor's cross-examination of the defendant (petitioner), to detail all of the instances of claimed misconduct. He also failed to provide a harmless error analysis. He claims that his October 17, 2001 conviction of multiples counts of Sexual Assault in the First Degree, § 53a-709(a)(2), multiple counts of Risk of Injury, § 53-21(1), one count of Risk of Injury, § 53-21(2), and Unlawful Restraint in the First Degree, § 53a-95(a) should be vacated.
The court will group all these medically-related claims together for ease of discussion.
The matter came to trial on March 24, June 9, June 10, and July 29, 2009. The Court heard testimony from the petitioner, his trial counsel, Attorney Martin McQuillan, his appellate counsel, Attorney David Grudberg, Dr. Martin, a forensic pathologist, Dr. David Mantell, a forensic psychologist, and Attorneys Lisa Steele and Michael Blanchard, legal expert witnesses. The respondent called Attorney Martin McQuillan for further testimony. Among the numerous exhibits received by the Court are the transcripts of the underlying trial and sentencing. The court ordered the parties to file post-trial briefs. The petitioner's post-trial brief was filed on December 23, 2009; the respondent's post-trial brief was filed on January 11, 2010.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a case in the judicial district of New Haven at New Haven under docket number CR99-0197018. He was charged with six counts of Sexual Assault in the first degree, § 53a-70, fourteen counts of Risk of Injury to a Minor, § 53a-21, and Threatening, § 53a-62.
2. As stated by the Appellate Court, the jury could reasonably have found the following facts to be true regarding the underlying offenses: "The victim accused the defendant of sexually assaulting her on a regular basis beginning at age four and ending when she was nine years old. After the victim last visited the defendant in August 1999, her mother noticed that she had a bleeding injury on her arm, apparently caused by fingernails that were dug into her skin. The victim told her mother that the defendant had injured her and had also chased her with a knife. The victim did not reveal any incidents of sexual abuse to her mother at that time. The victim's mother immediately reported these incidents of physical violence to the local police department, which began an investigation into possible physical abuse of the victim by the defendant. The police referred the matter to the Department of Children and Families (DCF). Subsequently, on September 10, 1999, the victim revealed to Celmira Gonzalez, an investigator for the DCF, that the defendant had also subjected her to sexual abuse. Gonzalez recommended that the victim be evaluated by the Yale Child Sexual Abuse Clinic and referred the case to the police for investigation of possible sexual abuse. The victim revealed to Florence Freudenthal Mackey at the Yale clinic the details of the alleged sexual abuse that she had suffered at the hands of the defendant, and she was physically examined by Janet Murphy, a nurse practitioner." State v. Spiegelmann, CT Page 16874 81 Conn.App. 441, 443-44, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004).
3. "Two detectives in the sex crimes unit of the local police department met with the victim on November 10, 1999, and took her sworn statement, in which she disclosed that she had been sexually abused by the defendant." Id., 444.
4. "At trial, the victim testified in graphic detail about both the physical and sexual abuse she repeatedly had endured from the defendant. The victim testified that the defendant touched her `in a way she didn't like,' in that he had touched her face, breasts, buttocks and vagina; had touched her with his penis in her vagina, buttocks and mouth; had penetrated her vagina, mouth and rectum with his penis; had stuck his finger in her vagina and rectum; and had placed his tongue inside and outside her vagina and stuck his tongue in her mouth `and moved it around.' The victim also testified that the defendant forced her to sleep in the same bed with him when she spent the night, that he would rub his penis on her chest until he ejaculated onto her and would prevent her from leaving the bed to clean herself." Id., 444-45.
5. "The victim also testified that the defendant's bathroom floor usually had `number two' and magazines on it when she would come to visit. It was clear from the victim's testimony that `number two' was used in reference to human excrement. The victim further testified that the defendant would force her to take baths in water in which the defendant had defecated and he would then rub his feces on her. On other occasions, the victim testified, the defendant would defecate in a container and rub his feces on her chest, back and legs." Id., 445.
6. "The victim testified that the defendant had shown her various pornographic materials, including photographs, magazines and videotapes depicting various images of men and women engaging in sexual activity, naked men and women, and naked people with `number two.' The victim also testified that the defendant had read her stories that he had printed from the Internet that involved `naked people going to the bathroom.' The victim testified that the defendant had threatened to kill her, her mother and her dog if she told anyone about the abuse. When she had tried to stop the defendant, the victim testified, he would inflict harm on her, chase her with a knife or threaten her." Id., 445.
7. "Immediately prior to the defendant's arrest on November 18, 1999, the police executed a search and seizure warrant for his home and found magazines, photographs, sexual fantasy stories from the internet and videotapes in the locations that the victim had specified. Material stored on the defendant's computer was reviewed by the Federal Bureau of Investigation (FBI). Thomas Veivia, an FBI agent, testified at trial that his search revealed approximately 45,000 images of a sexual nature, including images of sexual activity involving bodily fluids such as urine, feces, semen and saliva." Id., 445-46.
8. After a jury trial before the Hon. Jon C. Blue, a verdict of guilty was returned on three counts of Sexual Assault in the First Degree, three counts of Risk of Injury to a Minor, one count of Unlawful Restraint, with a not guilty verdict on one count of Risk of Injury to a minor. On December 14, 2001, the Court (Blue, J.) sentenced petitioner to a total effective sentence of sixty years.
Respondent's Exh. L, pp. 3-6.
Petitioner's Exh. 6a. pp. 14-16.
9. The petitioner was represented at the underlying criminal trial by Attorney Martin McQuillan. Mr. McQuillan is a graduate of Georgetown University and Western New England College of Law. At the time of trial, Mr. McQuillan had been a member of the bar for about eleven years and had tried three or four criminal matters. His practice consisted of criminal defense. personal injury, and workers' compensation matters. He practiced law with his father, Paul McQuillan, in the firm of Januszewski, McQuillan and Denigris. He worked on petitioner's case with his father and consulted with him on the case, but it was decided at time of trial that Martin McQuillan would try the case because he had one similar in nature just prior to the instant case.
10. On appeal petitioner was represented by Attorney David Grudberg. Mr. Grudberg is a graduate of Yale University and the University of North Carolina Law School after which he clerked for a judge of the 2 Circuit Court of Appeals. He became a member of the Connecticut Bar in 1986 and the New York Bar in 1987. His first four years of practice consisted of 90% to 95% criminal matters. From 1990 to the date of the habeas trial, it has consisted of 50% criminal and 50% personal injury and commercial litigation. He has represented hundreds of clients in criminal cases, has tried ten to twelve criminal matters, and handled thirty-five to fifty criminal appeals.
11. On appeal, the petitioner's convictions were upheld. State v. Spiegelmann, supra, 81 Conn.App. 441.
12. Martin McQuillan, petitioner's trial counsel, testified at the habeas trial that from the point petitioner retained his firm, he and his partner and father, Paul McQuillan, worked on the case together with shared responsibilities. At trial, however, he, Martin McQuillan, was lead attorney and tried the entire case. He also stated that from the outset petitioner was very involved in his own defense. He was adamant throughout that he did not expose his daughter to pornography, never sexually assaulted her, and that he was innocent as to all charges.
13. Mr. McQuillan further stated that he consulted with two experts in preparation for trial. One, Dr. Rau, a pediatric obstetrician, is the Director of the Children's Medical Center and an Assistant Clinical Professor of Obstetrics and Gynecology and Pediatrics at the University of Connecticut School of Medicine. He was asked to review the medical records of the victim in order to confirm that there was no physical evidence of penile-vaginal penetration, as such evidence would be helpful to petitioner's defense. Mr. McQuillan talked to petitioner about this consultation. A second expert, Dr. Zeman, a psychiatrist and Director of the Institute for Living, was asked to evaluate petitioner and also to review records concerning the victim to determine if there was anything contained in those records that would assist Mr. McQuillan in defending petitioner. Petitioner was informed of this by letter.
Respondent's Exh. M.
14. Mr. McQuillan stated that he recalled discussing with Dr. Rau the doctor's review of the Yale Child Sex Abuse Evaluation Program report of the medical examination of the victim, which reported a normal finding. When asked specifically if this finding could be consistent with child sexual abuse, Dr. Rau responded that it could. Mr. McQuillan recalls also asking him whether he would be able to testify to a reasonable degree of medical probability that a normal finding would be inconsistent with penile-vaginal penetration. Dr. Rau responded that he could not. After the state's witness, Nurse Practitioner Janet Murphy testified at the trial that a normal finding was not unusual in sexual abuse and also not unusual in cases where there was no sexual abuse, Mr. McQuillan again consulted with Dr. Rau concerning the testimony of Nurse Murphy and was told that what she testified to was consistent with his findings. He decided not to present any medical testimony through Dr. Rau because it would have been duplicative and would not have benefited the defense.
Petitioner's Exh. 10a, pp. 57-58.
15. When Mr. McQuillan's partner, Paul McQuillan discussed the results of Dr. Zeman's review of the victim's records, Dr. Zeman reported that, if asked, he would have to testify that the contents of the records are consistent with someone who has been sexually abused. Mr. McQuillan stated that this was the major reason that he did not use those records in defense of petitioner.
16. Mr. McQuillan also testified that he did, in fact object to constancy of accusation testimony coming in when it was first attempted to be elicited by the prosecutor, Maxine Wilensky, from the first of many witnesses. He stated that Judge Blue did limit the testimony based on his argument, and he continued to object even when the questions were limited to the parameters set by the Court.
Petitioner's Exh. 9a, pp. 59-88.
Petitioner's Exh. 9a, pp. 85-88.
17. David Grudberg testified at the habeas trial that he and his partner, William F. Dow, III, were contacted by petitioner after his sentencing for the purpose of representing him on appeal. He further stated that, after the initial meeting with petitioner, he obtained the appellate record and the trial transcript, reviewed them, spoke with trial counsel, Martin McQuillan, reviewed materials from his file, and did research relating to the issues that were raised by the trial transcript. Discussions with Mr. McQuillan were an ongoing process, and he said he would speak with him or continue to review materials at his office as needed in preparation to file the appellate brief. After the initial view of the trial record, Mr.Grudberg said he met with petitioner to discuss any issues he felt might be worth pursuing on appeal. When Mr. Grudberg told petitioner what he thought were viable appellate issues and the proposed plan for the brief, petitioner agreed with that plan.
18. Mr. Grudberg filed the appellate brief in accordance with that agreement. He further testified that after the brief had been filed, it came to his attention that the Appellate Court issued a decision relating to constancy of accusation. He immediately contacted the Appellate Court and opposing counsel that he wished to seek leave of the Court to add an argument relating to constancy of accusation. He ultimately filed a substitute brief and substitute appendix on April 21, 2003, and informed petitioner of that filing by letter on that same date.
Respondent's Exh. B and C.
Respondent's Exh. S.
19. The Court will discuss additional facts as needed.
DISCUSSION
The first count of the amended petition, as further amended on January 20, 2009, first alleges ineffective assistance by trial counsel. The second count of the amended petition raises a claim of ineffective assistance by appellate counsel. The respondent's return denies that counsel performed deficiently as alleged by the petitioner. The return also raises several defenses: procedural default; deliberate bypass; and res judicata. The petitioner filed a reply to the return denying the defenses and in essence asserted that counsel's alleged ineffective assistance already alleged the cause and prejudice for any procedural default.
Count I: Ineffective assistance by trial counsel
The petitioner's allegations in count one of the amended petition are that trial counsel failed to: conduct sufficient consultation regarding the medical proofs available to the state; meaningfully challenge the testimony of medical personnel who testified for the state; present medical testimony to support the petitioner's declaration of innocence; introduce as evidence medical reports concerning the complaining witness's behavior and mental health; object to constancy of accusation witnesses; object to the state's attorney's cross-examination of the petitioner; conduct sufficient expert consultation concerning child sexual abuse within the context of the criminal case allegations and available information; and present evidence via expert testimony concerning child abuse within the context of the criminal case allegations and available information. The court's treatment of these claims will track the petitioner's own discussion in his post-trial brief.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
"`The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' (Emphasis added; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009), quoting Strickland v. Washington, supra, 466 U.S. 689." Davey B. v. Commissioner of Correction, 114 Conn.App. 871, 875-76, 971 A.2d 735 (2009).
Claims pertaining to medical reports, testimony and proof
The petitioner faults Attorney McQuillan for not sufficiently consulting regarding the medical proof available to the state, specifically so in the context of child sexual abuse. "[U]nder certain circumstances, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. Siano v. Warden, 31 Conn.App. 94, 99-105, 623 A.2d 1035 (failure to call orthopedic surgeon who would have testified that due to extensive injuries, it would have been difficult for petitioner to carry heavy computer equipment from residence constituted inadequate assistance of counsel), cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); see also Bell v. Miller, 500 F.3d 149 (2d Cir. 2007) (failure to present expert testimony regarding effects of trauma, significant blood loss and certain medication on memory of witness constituted ineffective assistance); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) (failure to consult expert on sexual abuse of children constituted inadequate assistance)." (Emphasis in original.) Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 76, 943 A.2d 1148, cert. denied, CT Page 16880 287 Conn. 920, 951 A.2d 569 (2008). See also, Michael T. v. Commissioner of Correction, 122 Conn.App. 416, 423 A.2d (2010); Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005), cert. denied sub nom. Artus v. Gersten, 547 U.S. 1191, 126 S.Ct. 2882, 165 L.Ed.2d 894 (2006).
Mr. McQuillan did consult with Dr. Rau, a pediatric obstetrician, about the case. Mr. McQuillan deemed such consultation warranted because there was no physical evidence in the medical records that there had been penile-vaginal penetration of the victim. Dr. Rau confirmed that a normal finding could be consistent with child sexual abuse. Dr. Rau advised Mr. McQuillan that he would not be able to testify to a reasonable degree of medical probability that a normal finding would be inconsistent with penile-vaginal penetration. After Nurse Practitioner Murphy testified during the criminal trial that a normal finding was not unusual in sexual abuse cases as well as when there has been no sexual abuse, Mr. McQuillan again consulted with Dr. Rau to assess whether Murphy's testimony was consistent with Dr. Rau's own findings. Dr. Rau confirmed that her testimony was consistent with his own findings. Because Dr. Rau's testimony would have been duplicative and not have provided any benefit to the defense, Mr. McQuillan decided not to present any medical testimony through Dr. Rau.
Mr. McQuillan also consulted with Dr. Zeman, a psychiatrist, who evaluated the petitioner and reviewed the records pertaining to the victim that would assist Mr. McQuillan in defending the petitioner. Dr. Zeman discussed the results of his examination of the petitioner and the victim's records with Paul McQuillan, Martin McQuillan's partner and co-counsel in the underlying criminal case. Dr. Zeman indicated that if asked, he would have to testify that the contents of the victim's records were consistent with someone who had been sexually abused. Consequently, Dr. Zeman was not called as a witness and Mr. McQuillan did not use the records Dr. Zeman reviewed in the petitioner's defense.
The victim reported and later testified at trial about the various sexual assaults perpetrated on her by the petitioner. Although these sexual assaults regularly occurred over a several year period, the victim reported them for the first time on September 10, 1999, to Celmira Gonzalez, an investigator for DCF. Gonzalez, in turn, recommended that the victim be evaluated further by the Yale Child Sexual Abuse Clinic. The victim revealed the details of the sexual abuse to Florence Freudenthal Mackey at the Yale clinic and was physically examined by nurse practitioner Janet Murphy. The physical examination did not, however, occur until September 22, 1999. Petitioner's Exhibit 10a, at pgs. 40-41, 58. The physical exam resulted in findings of normal. Id., at pgs. 49-50.
Nurse Murphy's report contains the following in the impression/diagnosis section: "History of sexual abuse revealed. Physical exam reveals normal findings that are consistent with the history revealed." Petitioner's Exhibit 15a, at pg. 6.
According to Murphy, it is not unusual to have normal findings in physical examinations. Id., at pg. 58. Murphy additionally testified that several factors that can contribute to normal findings when sexual abuse has occurred, with one such factor being how much time has elapsed between the sexual events occurred and the physical examination. Id. The passage of time permits healing and can lead to lack of visible trauma and, therefore, normal appearance of previously traumatized tissue. Id. Traumatized genital tissue would heal within about four weeks from the time of injury, according to Murphy. Id., at pgs. 58-59. Similarly, traumatized tissue in the anal region heals and may present a normal appearance more quickly than traumatized genital tissue in spite of past sexual abuse. Id., at pg. 63.
The victim testified that she was last with the petitioner in August of 1999. Petitioner's Exhibit 7a, at pg. 56. The victim's mother testified that the victim's final visit with the petitioner was the last Sunday in August of 1999. Petitioner's Exhibit 9a, at pg. 55. Given that the Murphy's examination was conducted on September 22, 1999, at least three, and potentially four, weeks transpired between the victim's last visit with the petitioner and the examination. This time span is consistent with Murphy's testimony that trauma to an area can fully heal in approximately four weeks.
At the habeas corpus proceeding, the petitioner presented expert testimony from Dr. Mark Taff, a physician licensed to practice medicine in both New York and New Jersey. Dr. Taff's area of expertise is forensic medicine and pathology and spans about twenty-five years. Dr. Taff testified that part of the normal training for any person specializing in forensic pathology includes the subject of child abuse. Such training includes how to recognize injuries related to the sexual abuse of children.
Dr. Taff testified that if there is an inflicted injury, such as what might occur when adult male genitalia penetrate a smaller child's genitalia against their will, possibly causing a laceration or a tear, that the healing process would repair that injury, depending on its size, with a scar formation. The healing process for lacerations or tears, depending on their depth, takes several weeks and results in scar formation. If the injury is superficial, according to Dr. Taff, bruising would occur and also heal itself, without necessarily leaving a scar, over the course of several days and up to a week or two. Dr. Taff additionally noted that the formation of scar tissue resulting from lacerations or tears to traumatized tissue in the anal region.
Dr. Taff reviewed, amongst other documents, the report authored by Murphy after the physical examination. After applying investigative analyses, Dr. Taff rendered the following opinion: ". . . in conjunction with the whole report, with the history, and the findings, I tried to correlate the allegations of child sexual abuse with the findings reported by Nurse Murphy, and basically . . . I saw no evidence of any acute or chronic injuries that would be secondary to nonconsensual, penetrative vaginal and anal intercourse. I saw no evidence of anything acute or old reported in the medical records." Transcript (March 24, 2009), at pg. 87.
Dr. Taff also rendered his opinion that ". . . based on the frequency that was reported and my understanding of the reports that the lack of evidence would be inconsistent with [many occurrences of anal penetration]; that I would as a physician expect to find some type of anal injury to a child who has been penetrated multiple times by a normally formed, erect adult male." Id., at pg. 94. After being asked what sort of evidence he would expect to see on the child's body, Dr. Taff indicated that "[i]f the child was examined in the acute phase, soon after the alleged penetration, there should be some bruising, some hemorrhaging, possible laceration. There could be some congestion — vascular congestion in that area, and there would be clinical signs and symptoms to go with the anatomical findings if the child had been penetrated; and I would expect the child to express some type of pain soon after such an assault." Id.
Subsequently, on cross-examination, Dr. Taff was asked about the medical evidence presented in the criminal case because there were no findings or medical evidence confirming sexual assaults. Id., at pg. 115. Dr. Taff concurred that there were no findings or medical evidence that indicated sexual assaults had occurred, which is duplicative of Nurse Murphy's report and testimony during the criminal trial. Dr. Taff testified that Murphy concluded and testified that a normal finding is consistent with child sexual abuse. Id., at pg. 116. However, Dr. Taff also acknowledged that Murphy also testified that a normal finding was also consistent with no sexual abuse. Id. Dr. Taff was most critical of a definitive diagnosis being made when there are no findings supporting such a definitive diagnosis. Id. Per Dr. Taff: "My interpretation of that [impression/diagnosis] is there was a history of sexual abuse. The findings are normal, and that's consistent with the history of sexual abuse. [Murphy] called it sexual abuse according to this, unless I've misinterpreted this — this record." Id. at pg. 117.
After reviewing both Murphy's report and testimony from the criminal trial, this court cannot agree with Dr. Taff's assertion that Murphy concluded, based on her physical examination of the victim, that sexual abuse had occurred. Murphy's conclusion was that the normal findings were consistent with the sexual assaults reported by the victim. Stated somewhat differently, the normal findings were not inconsistent with the victim having been sexually assaulted. Dr. Rau's opinions, both based on a review of the records and subsequent to Murphy's testimony, did not reach a different conclusion than did Murphy. Dr. Taff's opinion can be distilled down to that he believes the sexual assaults perpetrated upon the victim must have left scarring or other physically discernable indicia of healed trauma.
Essentially, due to the lack of physical findings that confirmed sexual assault, the criminal case was a classic case of the jury determining whether to credit either the victim's testimony or the petitioner's testimony. "It is the jury's right to accept some, none or all of the evidence presented . . . Moreover, [e]vidence is not insufficient . . . because it is conflicting or inconsistent. [The jury] is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses . . . The [jury] can . . . decide what — all, none, or some — of a witness' testimony to accept or reject. (Citations omitted; internal quotation marks omitted.)" State v. Wortham, 80 Conn.App. 635, 642, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004), citing and quoting State v. Pranckus, 75 Conn.App. 80, 87-88, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003).
The petitioner has not shown that Attorney McQuillan rendered deficient performance for not sufficiently consulting regarding the medical proof available to the state. Even if this court were to presume that the petitioner had proven deficient performance, which he has not, the petitioner has in no way undermined this court's confidence in the outcome of the criminal proceeding.
Failure to meaningfully challenge the testimony of medical personnel who testified for the state
The petitioner's second claim against Attorney McQuillan is that he failed to meaningfully challenge the testimony of medical personnel who testified for the state. In essence, this claim is derivative of the first claim and challenges counsel's actions (or inaction) for not confronting state's witnesses who presented medical testimony. The court has already concluded that Attorney McQuillan was not deficient in how he consulted regarding the medical proof available to the state. The court also concludes, based on that foregoing discussion, that that the petitioner has failed to show that counsel was deficient in how he challenged the testimony of the medical personnel who testified for the state.
Failure to present medical testimony to support the petitioner's declaration of innocence
Essentially, this claim alleges that Attorney McQuillan failed to properly investigate issues pertaining to the defense and present medical testimony in support thereof. Again, this claim is inextricable woven into the claim that counsel failed to investigate the medical proof and testimony presented and relied upon by the state.
"[A]lthough it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility . . . In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities." (Emphasis in original.) (Internal quotation marks omitted.) Romero v. Commissioner of Correction, 112 Conn.App. 305, 312, 962 A.2d 894, cert. denied, 290 Conn. 921, 967 A.2d 236 (2009), citing and quoting Crawford v. Commissioner of Correction, 285 Conn. 585, 598-99, 940 A.2d 789 (2008). "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 . . ." (Citations omitted.) Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 481, 969 A.2d 860, cert. denied, CT Page 16885 292 Conn. 918, 973 A.2d 1275 (2009).
The only evidence presented by the petitioner in this matter in support of this claim is Dr. Taff's testimony. As previously summarized, this court is unconvinced that the evidence presented in the habeas corpus proceeding has undermined this court's confidence in the outcome of the underlying criminal proceeding. This claim must, therefore, also fail for the identical reasons stated above.
Failure to introduce as evidence medical reports concerning the victim's behavior and mental health
This claim challenges Attorney McQuillan for not utilizing the victim's medical reports concerning her behavior and mental health. Such reports apparently would be reviewed by potential expert witnesses, Dr. Rau and Dr. Zeman, and thereafter used to undermine the victim's credibility with the jury. The petitioner at length presented testimony from Dr. Mantell about information that he believes could or should have been used differently. The court sees no need to review Dr. Mantell's testimony in great detail. In the final analysis, Dr. Mantell's opinions are tantamount to no more than speculation. "The credibility of expert witnesses and the weight to be given to their testimony . . . is determined by the trier of fact." (Internal quotation marks omitted.) State v. Alvarado, 62 Conn.App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).
Because of the highly speculative nature, the court declines to assign any weight to Dr. Mantell's testimony. The petitioner has neither proven that Attorney McQuillan was deficient or that the petitioner was prejudiced.
Failure to object to constancy of accusation witnesses
"`[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court . . . Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).' (Emphasis in original; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 869, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005); see also Collins v. Goldberg, 28 Conn.App. 733, 738, 611 A.2d 938 (1992) (failure to brief certain claims set forth in complaint constituted abandonment of claims in trial court)." Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010).
Even if this claim is not deemed abandoned, this court's review of the criminal trial transcripts does not, in particular in light of the discussion below of the ineffective assistance of appellate counsel claims, lead to the conclusion that Attorney McQuillan was ineffective for failing to object to constancy of accusation witnesses.
Failure to object to the state's attorney's cross-examination of the petitioner
The petitioner next asserts that Attorney McQuillan failed to object to the state's attorney's cross-examination of the petitioner. The petitioner's post-trial brief does not address this claim and the court, therefore, may deem the claim to be abandoned. Raynor v. Commissioner of Correction, supra, 117 Conn.App. 796-97. The court does note that the petitioner's post-trial brief tangentially addresses this claim in the context of the ineffective assistance of appellate counsel claim for failure to raise a claim of prosecutorial misconduct. Thus, although the claim is not explicitly addressed in the brief, the court will address the claim.
According to the petitioner, the prosecutor appealed to emotion during the petitioner's cross-examination. The petitioner identifies by citation eleven specific pages of the October 12, 2001 transcript. Petitioner's Exhibit 12a. The petitioner also indicates that: "The prosecutor's closing argument was well beyond the remarks that drew censure in State v. Santiago, 269 Conn. 726, [ . . .] (2004) . . . The appellate court distinguished its decision in State v. Santiago, 73 Conn.App. 205, 244, [ . . .] (2002), cert. granted, 262 Conn. 939, [ . . .] (2003), in this case [i.e., State v. Spiegelmann], however, because trial counsel did not object to the comments, the prosecutor was not admonished by the trial court. State v. Spiegelmann, 81 Conn.App. 441, 457 (2004). Appellate counsel had not addressed the failure to object in his brief, nor in his reply brief, despite the State's comment on this point in its brief." Petitioner's Post-Trial Brief, at pg. 16.
The citations are as follows: pp. 117, 130, 132, 145-46, 148, 157, 160, 172, 173 and 174. Petitioner's Post-Trial Brief, at pg. 16.
A key aspect of the petitioner's claim, at least at first glance, appears to be when these appeals were argued and when the decisions were released. The Appellate Court's decision in Santiago was released on October 29, 2002, after the petitioner was convicted in 2001. The Appellate Court in Santiago reversed the judgment of the trial court and ordered a new trial after the concluding that prosecutorial misconduct deprived that defendant of a fair trial. State v. Santiago, supra, 73 Conn.App. 208, 212. Noteworthy also is that the Appellate Court reviewed the prosecutorial claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), even though the defendant had failed to preserve the claim. State v. Santiago, supra, 73 Conn.App. 212.
On February 10, 2004, the Appellate Court released its decision in State v. Spiegelmann. The petitioner's third claim on his direct appeal was that the trial court had improperly "permit[ed] prosecutorial misconduct during cross-examination of the [petitioner] and during closing argument, thereby depriving him of a fair trial." State v. Spiegelmann, supra. 81 Conn.App. 443. More specifically, the petitioner challenged the prosecutor's reference during closing argument to facts not in evidence, appealing to the jury's passions and emotions, and the use of sarcasm and argument during cross-examination of the petitioner. Aside from one aspect of a claim that was inadequately briefed, the Appellate Court reviewed these claims, which were not preserved, pursuant to Golding. Id., at pgs. 453-58. The Appellate Court concluded that the petitioner had not been deprived of a fair trial.
The inadequately briefed claim was "that the prosecutor discussed the [petitioner's] possession of pornographic materials with the purpose of inflaming the passions of the jurors." State v. Spiegelmann, supra, 81 Conn.App. 456. The Appellate Court noted that the petitioner had "failed to specify which statements were allegedly improper[.]" Id.
The Supreme Court, in a decision released June 22, 2004, reversed the Appellate Court's decision in State v. Santiago, thereby affirming the trial court's judgment. State v. Santiago, 269 Conn. 726, 850 A.2d 199 (2004). The Supreme Court ". . . conclude[d] that although some of the prosecutor's actions constituted misconduct, in the context of the whole trial, the defendant was not deprived of his constitutional right to a fair trial." Id., at pg. 729. Additionally, the Supreme Court noted that recently it "ha[d] determined that the Golding test is superfluous in prosecutorial misconduct cases because the due process analysis employed in prosecutorial misconduct cases, pursuant to State v. Williams, CT Page 16888 204 Conn. 523, 539-40, 529 A.2d 653 (1987), embodies the third and fourth prongs of Golding, i.e., whether a constitutional violation occurred and whether it was harmful. State v. Stevenson, 269 Conn. 563, 572-75, [ 849 A.2d 626] (2004). Therefore, [a court need] not apply the Golding test to [a] defendant's claims of prosecutorial misconduct, as [a] due process analysis will adequately address whether any unpreserved claims are of constitutional magnitude requiring a new trial." State v. Santiago, supra, 269 Conn. 732-33.
"[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor . . . The issue is whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process . . . [M]oreover . . . [a defendant is not entitled to prevail when] the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . In determining whether the defendant was denied a fair trial [by virtue of prosecutorial misconduct] we must view the prosecutor's comments in the context of the entire trial." Id., at pg. 733-34.
"Prosecutorial misconduct . . . may occur in the course of cross-examination of witnesses . . . and may be so clearly inflammatory as to be incapable of correction by action of the court . . . In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury's verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal . . .
"In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case . . .
"Just as the prosecutor's remarks must be gauged in the context of the entire trial, once a series of serious improprieties has been identified [a reviewing court] must determine whether the totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial . . . Thus, the question in the present case is whether the sum total of [the assistant state's attorney's] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties . . ." (Citations omitted.) Id., at pgs. 735-36.
This court has reviewed the specific portions of the October 12, 2001 transcript in which the petitioner identifies improper remarks by the prosecutor. Supra, pg. 18 fn. 10. The purported improprieties are as follows:
1) Q: And you've reviewed all of the police reports, haven't you?
A: I have.
Uh-huh. And you've had the police reports in your — or at least you've seen the police reports more than once, haven't you?
A: I have.
Q: And you've read them quite thoroughly, haven't you?
A: I've read them.
Q: You've read them quite thoroughly, haven't you?
A: I have read them.
Q: Many times, right?
A: Maybe twice.
Q: Maybe twice, ha. Your daughter is accusing you of [these] horrendous, horrible crimes and you've only read the police reports twice. That's your testimony, correct?
A: Yes.
Petitioner's Exhibit 12a, pg. 117.
2) Q: Without your password she would have been unable to access the pornographic pictures, correct, that were contained within your computer?
A: Correct.
Q: So as to your computer then it must have been a huge coincidence that that she knew that pornographic pictures were there? Is that your testimony that this had to have been a huge coincidence?
A: I had already volunteered that on one occasion she came up with a —
Q: Yes or no, sir. Was it a coincidence —
A: Yes.
Q: — that she just happened to know about these pictures? And I guess it must have just been a coincidence that she knew what the pictures were all about; isn't that correct?
A: I don't have any idea.
Q: That it was just a coincidence that when she told the police where they would find these pictures and she told them what they were about, it must have been a huge coincidence, right?
A: I don't know.
Q: And it must have also been a huge coincidence that she told the police that these pictures involved — although she didn't use the word — feces? It must have been a huge coincidence, right?
A: I don't have any idea.
Petitioner's Exhibit 12a, pg. 130-31.
3) Q: So I guess it must have just been a lucky guess on your daughter's part when she told them where to search for these items; isn't that correct then?
A: I think that it's possible that in my brief absences for the reasons I've indicated that she would have had the opportunity to snoop around and possibly could have discovered some of the things that were there.
Q: Possibly, could have, maybe, but you don't. You can't say with any amount of certainty; isn't that correct?
A: That's correct.
Q: Yet you told Gary Brandl with a great deal of certainty that she had never been alone in your apartment, right?
Petitioner's Exhibit 12a, pg. 132.
4) Q: And, in fact, you read these articles to your daughter in order to prepare her for you having sex with her; isn't that correct?
A: Nothing like that's ever happened.
Q: And this is a magazine you also owned; isn't that correct?
A: I have no recollection of it.
Q: That magazine has been in your possession; isn't that correct?
A: I have no recollection.
Q: And you've read this magazine, haven't you?
A: I . . . Not necessarily. I don't have any recollection of it.
Q: And, in fact, you read an article and are familiar with an article called "Daddy's Little Pussy"; isn't that correct?
A: No.
Q: And, in fact you caused this article to be read to your daughter; isn't that correct?
A: Nothing like that's ever happened.
Q: And you read to your daughter in order to prepare her for the sexual experiences that you are going to subject her to; isn't that correct?
A: Never happened.
Q: There is another magazine.
Q: Take a look at this, sir.
A: Ma'am, as I had indicated —
Q: Sir, I asked you to take a look at that please.
A: I'm looking at it.
Q: And this is your magazine. It was in your possession; isn't that correct?
A: I have no specific recollection. Most of those magazines are at least 20 years old. They were —
Q: And you've kept them for the 20 years, haven't you? Yes or no, sir
A: Yes.
Q: — you've kept them? And you are — you have read what's in these magazines, haven't you?
A: For the most part, no.
Q: And, in fact, you have read an article — and you say for the most part no. But you have read an article called "Twelve Years Old and Ready"; isn't that correct?
A: No.
Q: And you caused that article to be read to your daughter in order to prepare her for — and indoctrinate her and breakdown her defenses for the things that you were about to do to her; isn't that correct?
A: Absolutely false.
Q: And, in fact, you acted those articles by placing your penis in your daughter's vagina, right?
A: That's [an] abject lie.
Q: Uh-huh. And you acted out these articles in these magazines and these fantasies by placing your penis in your daughter's mouth; isn't that correct?
A: It's a lie. It never happened.
Q: And you also placed your finger in her anal opening; isn't that correct?
A: That's never happened.
Q: Uh-huh. And you acted out these magazine articles and these fantasies that you had read to your daughter or caused her to read by putting your tongue in her vagina; isn't that correct?
A: I find that subject matter disgusting —
Q: I didn't —
A: — and —
Q: — ask you —
A: — repugnant —
Q: — what you —
A: — and no —
Q: — found disgusting.
A: No, never happened.
Q: And you also acted out the fantasies that are in these movies, these magazines by placing your penis on her chest and ejaculating on her —
A: No —
Q: — isn't that correct?
A: — nothing like that has ever happened.
Q: And by rubbing it on her; isn't that correct?
A: No, it isn't.
Q: And you ejaculated on her eyes and her face and you rubbed it; isn't that correct?
A: No, it isn't.
Q: You kept all these articles and kept entertaining these magazines and these movies not because of inventory; isn't that correct? You kept them in order to indoctrinate your daughter and you had obsessions with these subjects; isn't that correct?
A: That's absolutely false. And the newer magazines that you brought out had nothing at all to do with any of those subjects.
Q: In fact, you used to leave these magazines out for your daughter to view. You'd put them on the coffee table, in the bedrooms, right? Yes or no, sir. You would put them out for your daughter —
A: That's absolutely false . . .
Petitioner's Exhibit 12a, at pgs. 146-48.
5) Q: Isn't it a fact that you had some 38, what they call, scat letters in the drawers of your hutch in the bedroom?
A: There were similar counts downloaded from a web site and archive.
Q: Okay. And there were a minimum of 38; isn't that correct?
A: I don't know the count. It could have been.
Q: Okay. And you downloaded them; isn't that correct? And your read them; isn't that correct?
A: I read some of it.
Q: Yes. And you read them to your daughter, right?
A: That never happened.
Q: Uh-hm. And you read them to your daughter in order to prepare her for what you were about to do to her, didn't you?
A: That's absolutely incorrect.
Q: And, in fact, you couldn't stop thinking about this subject matter, could you?
A: That is a complete misstatement.
Q: 45,000 pictures. At least by your own admission 30 percent dealt with that? Letters, stories downloaded from the internet that you, yourself, had to click on a button to obtain a hard copy of and you weren't obsessed with this?
A: No.
Q: There was a point in time where you needed an outlet for that obsession, didn't you?
A: Not at all.
Q: And your daughter was your outlet, wasn't she?
A: The —
Q: Wasn't she? Yes or no.
A: Absolutely not.
Petitioner's Exhibit 12a, at pgs. 156-57.
6) Q: When you met with Celmira you tried to teach your daughter good values; isn't that correct?
A: Yes. In fact, I did.
Q: And these are the good type of values you taught her, isn't that correct, sir, by putting your penis in her vagina, your finger up her anal opening —
A: None of those —
Q: — isn't —
A: — things —
Q: — that correct?
A: None of those things ever happened.
Q: Now, in terms of the, shall we call them, x-rated movies that you had —
A: Yes.
Q: — I believe those were found in your bedroom; isn't that correct, sir?
A: I believe they were closet in the —
Q: In the —
A: — office.
Q: — bedroom. And I — again, I guess it's just a coincidence that the police found them where [S.] said they would be; isn't that correct? It's just a coincidence, right, sir? Yes or no.
A: I don't have any idea.
Q: Let me see, you said that the last time that [S.] was in your house was August of 1999, correct?
A: Yes.
Q: And the police found all these items November of 1999?
A: Yes.
Q: So it's about two months later, correct?
A: Yes.
Q: And yet they were all right where [S.] said they were; isn't that correct?
A: Yes.
Q: Yes or no, sir?
A: And, in fact —
Q: Sir, yes or no, they were all right where your daughter said they would be?
A: I don't know that.
Q: And, in fact, you showed [S.] many of these x-rated movies that were found in your house, didn't you, sir?
A: Never.
Q: And, in fact, you showed her those movies in order to recreate the scenes from those movies with her; isn't that correct?
A: Absolutely not.
Q: To recreate the scene of placing your penis between her breast and ejaculating; isn't that correct, sir?
A: Never.
Petitioner's Exhibit 12a, at pgs. 160-62.
7) Q: Now, your testimony to Attorney McQuillan was that you spent little money on pornography, right?
A: That's correct.
Q: But you downloaded tons of it on the inter — from the internet; isn't that correct?
A: I downloaded some on the internet.
Q: Right. And you have multiple films involving pornography, don't you?
A: I think there was 10 or 12.
Q: More like 15, maybe?
A: Fifteen maybe.
Q: Okay. And pornographic magazines; isn't that correct?
A: Those are mainly —
Q: Pornographic magazines —
A: Those are just mainly just normal adult things you find at a newsstand. Almost everything you showed me there did not have pornographic content. The newer stuff were strictly pictorials.
Q: Really. Normal?
A: That has —
Q: Is that what you call normal?
A: That's not typical of most of them.
Q: But that's — you said there are normal magazines. Is this what you call normal?
A: It's pictorials.
Q: It's pictorials. But this is what you call normal? Yes or no, sir.
A: I said — I said normal to what you would expect to find among adult materials at a newsstand.
Q: Articles on pedophilia, normal?
A: I've never even seen those. That's inventory — that is old inventory from the stores that were sent to me by my news distributor and almost already it is over 20 years old. That's not stuff I looked at.
Q: And yet you still had it in your possession, didn't you?
A: It was boxed up —
Q: You still had it in your possession?
A: I did.
Q: And you claimed you kept this stuff hoping to eventually sell it, correct?
A: I was planning to just unload it some day to some other shop, yes.
Q: You had it for 20 years and you didn't unload it in the last 20 years. What made you think you were going to unload it suddenly?
A: I'm just —
Q: Or is that a story you made up for this jury?
A: No. I'm just basically a packrat. I don't throw away a lot of stuff. There is a lot of things that I've just hung on to and after the dissolution of the stores, it just hung around. And it was packed away in inaccessible places and it was years and years and years, I never even saw most of that. Some of the more recent stuff was just some things that I looked at.
Q: Now, you said you got a wake-up call when [S] saw the naked man on the beach on your computer —
A: Yes.
Q: — correct? None of this other stuff in your house, around your house gave you a wake-up call? It wasn't until the picture of the naked man?
A: That's exactly right.
Q: And it never —
A: She never —
Q: It never occurred to you that you had a young child in the house, right, that could have found this?
A: I believe that it was all inaccessible to her. I had just moved. This all happened after —
8) Q: And you weren't worried because you had so thoroughly terrorized your daughter and you believed she would never open her mouth and tell what you had been doing to her over a five-year time period; isn't that correct?
A: Quite to the contrary. I was terrorized by her. I was extremely afraid because of the things that happened five years ago and extremely cautious about everything. So that's extremely false.
Q: So you were so cautious that you still kept all of this stuff in your house? That's what you want this jury to believe? Yes or no, sir. Yes or no, that's what you want this jury to believe?
A: That stuff was never made available to her.
Q: You thought you were safe, didn't you, because you had so thoroughly terrorized her, didn't you?
A: That's not true. I —
Q: Uh-hmm.
A: — had —
Q: And you thought because you were an adult you would be believed over a child, isn't that correct?
A: No, exactly the opposite, in fact.
Q: Okay. And you weren't all that worried because everything you owned you believed was legal, was legal to possess; isn't that correct?
A: I had no idea about the nature of a lot of it. And, yes, I was of the opinion.
Q: You had no idea that the nature of this was legal or illegal and still you kept it?
A: It had — most of this stuff was boxed and stored.
Q: But what you are saying is you had no idea whether it was legal or illegal and you still kept it?
A: These were materials sent to me —
Q: Sir —
A: — by my —
Q: — you have —
A: — news distributor.
Q: — no idea —
A: I had no idea that there was anything or an inappropriate nature.
Q: And you believed all of it was legal. So you had no reason to get rid of it even if the police found it; isn't that correct?
A: Hardly. If I had any expectation that this had anything to do with it, I would have disposed of all of it.
Petitioner's Exhibit 12a, at pgs. 174-75.
In the context of the entire criminal trial, these remarks, assuming that all are improper, even when viewed together with any other improprieties raised and already addressed in the context of the direct appeal, do not render the trial unfair. This court is unable to conclude that there is a reasonable likelihood that the jury would have reached a different verdict absent the indicated instances of prosecutorial impropriety. It bears reiterating what the Appellate Court already noted in the direct appeal: "In addition to the victim's detailed testimony regarding the acts of abuse committed against her, the court admitted into evidence items that the victim identified as things that had been shown to her by the [petitioner]. Among the items admitted as full exhibits were graphic photographs depicting feces on a plate and women consuming human excrement, and a videotape entitled `Fontaner der Lust,' which portrays, according to the [petitioner's] testimony, `people urinating on each other and doing things like that.' Several pornographic magazines identified by the victim were also admitted, as well as a spiked rubber ball device and a rubber ring device identified by the victim. Concededly, the stories at issue that were admitted into evidence depicted highly offensive material . . .
"We also note that although the [petitioner] was convicted of seven separate offenses, the jury acquitted him of one of the counts with which he was charged. This indicates that the jury was not so carried away by the explicitness of the contents of the evidence before it that it could not objectively reach a finding of guilt or innocence . . ." State v. Spiegelmann, supra, 81 Conn.App. 449-50.
Based upon the foregoing, the court concludes that the petitioner has failed to show how Attorney McQuillan's failure to object to the state's attorney's cross-examination of the petitioner inured to his prejudice. The court is unable to conclude that there was a breakdown in the adversary process that render the result of the jury trial unreliable. The petitioner has in no way undermined this court's confidence in the outcome of the criminal trial.
Failure to consult with and present evidence from expert on child sexual abuse
The final allegation against Attorney McQuillan pertains to his purported failure to consult with and present evidence from an expert on child sexual abuse. This claim inextricably weaves together the claim that counsel failed to properly use medical evidence and consult with and present evidence from a child sexual abuse expert. The petitioner relies on Dr. Mantell's review of the underlying case and his testimony in this case in support of this allegation. As already noted, the court finds Dr. Mantell's opinions to be too speculative. The court will not, therefore, assign any weight to Dr. Mantell's opinions. The petitioner has failed to prove that Attorney McQuillan rendered ineffective assistance for failure to consult with and present evidence from an expert on child sexual abuse.
Count II: Ineffective assistance by appellate counsel
"`A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first § 8, of the Connecticut constitution.' Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). `. . . To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show [1] that counsel's performance was deficient and [2] that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).' Ortiz v. Commissioner of Correction, 92 Conn.App. 242, 243-44, 884 A.2d 441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2005). When a petitioner is claiming ineffective assistance of appellate counsel, his burden is to prove that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal. Small v. Commissioner of Correction, supra, 721-24." Charles v. Commissioner of Correction, 112 Conn.App. 349, 350-51, 962 A.2d 868, cert. denied, 290 Conn. 922, 966 A.2d 235 (2009).
"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 . . . Experienced 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 . . . Appellate advocates select what in their professional judgment, are the most promising issues for review . . . It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment . . . A reviewing court must be highly deferential to counsel's decision and judge the action from counsel's perspective at the time . . ." (Citations omitted; quotation marks omitted.) Tillman v. Commissioner of Correction, 54 Conn.App. 749, 757, 738 A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999).
The petitioner's first claim directed at Attorney Grudberg is that he failed to challenge the trial court's overruling the petitioner's objection to allowing the constancy of accusation witnesses to testify that the complainant told them about oral, anal, and vaginal contact. Mr. Grudberg testified at the habeas corpus proceeding that he thoroughly reviewed the record to discern issues to raise on appeal and met with the petitioner to discuss those issues. He further testified that after the brief had been filed, it came to his attention that the Appellate Court issued a decision relating to constancy of accusation. He immediately contacted the Appellate Court and opposing counsel and informed them that he wished to seek leave of the Court to add an argument relating to constancy of accusation. He ultimately filed a substitute brief and substitute appendix on April 21, 2003, and informed the petitioner of that filing by letter on that same date.
The letter from Mr. Grudberg to the petitioner contains the following: "Enclosed are copies of the Substitute Brief and Appendix we filed today with the Appellate Court in connection with your appeal. The enclosed motion explains the circumstances of this somewhat unusual filing. As the motion indicates, immediately after filing the initial brief I learned of a new Appellate Court decision significantly changing the constancy of accusation evidence offered at your trial. I told you my judgment, based on the current state of the law, was not to raise an argument relating to that evidence, especially in light of the other available issues we had briefed. The recent decision changed my opinion on that score. Thus, you will see that the new brief includes an additional point challenging the constancy of accusation evidence." Respondent's Exhibit S.
The petitioner's second claim on direct appeal was ". . . that the trial court improperly admitted the testimony of four witnesses under the constancy of accusation doctrine, contrary to the holding of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). Specifically, the [petitioner] avers that the victim's testimony provided an insufficient predicate for the admission of the witnesses' corroborative testimony. In addition, the [petitioner] argues that the report of the assault to Gonzalez, a department investigator, was an `official report' and, therefore, all of the testimony by those witnesses to whom the victim had reported the assault following her meeting with Gonzalez was admitted improperly under State v. Samuels, 75 Conn.App. 671, 817 A.2d 719, cert. granted, 263 Conn. 923, 823 A.2d 1216 (2003). The [petitioner] did not object to the admission of this testimony on these grounds at trial. Therefore, this issue was not preserved properly for our review." (Footnotes renumbered.) State v. Spiegelmann, supra, 81 Conn.App. 450-51.
"The constancy of accusation doctrine allows a witness to whom the victim of a sex crime has confided the details of the crime to testify in court about what the victim told the witness as an aid in assessing the credibility of the victim. The doctrine is not strictly an exception to the hearsay rule because the testimony is not admitted to prove the truth of the testimony of the witness. The doctrine is now limited in Connecticut to allow testimony only as to the fact and timing of the victim's complaint or as to details necessary to associate the victim's complaint with the pending charge, for example, the time and place of the attack or the identity of the defendant. Other testimony of a witness who was the confidante of the victim is limited to corroboration of the victim's testimony, but cannot be used for substantive purposes. State v. Troupe, 237 Conn. 284, 304-05, 677 A.2d 917 (1996) (en banc).' State v. Minor, 80 Conn.App. 87, 93 n. 8, 832 A.2d 697 (2003)." State v. Spiegelmann, 81 Conn.App. 441, 450 n. 6, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004).
"At trial, the petitioner] objected to the scope of the witnesses' testimony on the ground that it went into more detail of the sexual assault than Troupe permits. The [petitioner] also objected to the number of constancy of accusation witnesses on the grounds that the testimony was cumulative and prejudicial to him. The [petitioner] has not revived these objections in this appeal." Id., at pg. 451 n. 7.
The petitioner sought review of the unpreserved issue in accordance with State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "In support of this claim, the [petitioner] relie[d] on [the] recent holding in CT Page 16906 State v. Samuels, supra, 75 Conn.App. 671." State v. Spiegelmann, supra, 81 Conn.App. 452. The Appellate Court concluded that this reliance was misplaced. Id. Although the petitioner made the same argument as had the appellant in Samuels, namely ". . . that the accumulation of improperly admitted testimony deprived him of a fair, trial, it is notable that in this case, unlike in Samuels, the [petitioner] made no proper evidentiary objections at trial." (Emphasis in original; footnote renumbered.) Id.
"Although the [petitioner] objected to the constancy of accusation testimony on other grounds, we previously have held that `[a]ppellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel.' (Internal quotation marks omitted.) State v. Beliveau, 36 Conn.App. 228, 241, 650 A.2d 591 (1994), aff'd, 237 Conn. 576, 678 A.2d 924 (1996). Therefore, the petitioner's] objections at trial, which differ from those raised on appeal, did not adequately preserve the issue for appellate review. See State v. Morales, 45 Conn.App. 116, 127-28, 694 A.2d 1356 (1997), appeals dismissed, 246 Conn. 249, 714 A.2d 677 (1998)." State v. Spiegelmann, CT Page 16913 supra, 81 Conn.App. 452.
Here, Mr. Grudberg initially considered raising a constancy of accusation claim, consulted with the petitioner, and for valid reasons did not select such a claim. This court would have to be highly deferential to the initial decision to not include the claim. But the court need not be deferential at all, for after the release of State v. Samuels, 75 Conn. 671, 817 A.2d 719 (2003), on March 25, 2003, Mr. Grudberg reconsidered his claim selection and sought permission, with consent from appellate counsel for the State, to file a substitute brief and appendix integrating a constancy of accusation claim. Respondent's Exhibit T. This court must be highly deferential to the constancy of accusation claims raised by Mr. Grudberg in reliance on the Appellate Court decision in Samuels. That deference is further buttressed by the Supreme Court's action in Samuels.
"The Appellate Court reversed the judgment of conviction and ordered a new trial on the ground that the four constancy of accusation witnesses should not have been permitted to testify and that the cumulative effect of the improperly admitted testimony deprived the defendant of his due process right to a fair trial under the United States constitution . . ." (Citation omitted.) State v. Samuels, 273 Conn. 541, 544, 871 A.2d 1005 (2005).
The Supreme Court in State v. Samuels, 273 Conn. 541, 544, 871 A.2d 1005 (2005), reversed the Appellate Court's decision. Although ". . . agree[ing] with the Appellate Court that the trial court improperly admitted the testimony of the four constancy of accusation witnesses[, the Supreme Court did] not agree, however, that the judgment of conviction should be reversed on the ground that the improper admission of that testimony rose to the level of a constitutional violation." Id. The Supreme Court noted that "[a]lthough the testimony of the four constancy witnesses was improperly admitted into evidence, we nonetheless conclude that in no case did the testimony of the individual witnesses substantially prejudice the defendant. The testimony of each witness was relatively brief and was similar in kind to that of the three constancy witnesses whose testimony was not challenged." (Emphasis added.) Id., at pg. 564. The Supreme Court further emphasized that ". . . the disputed testimony was not admitted for substantive purposes and did not include a detailed or explicit description of [the victim's] sexual encounters with the defendant[, two of the constancy of accusation witnesses] did not identify the defendant as the perpetrator, although the jury may have inferred that fact on the basis of their testimony[,] the prosecutor made only fleeting references to the improper testimony during closing argument[, and] the state's case against the defendant was strong because substantial and detailed testimony regarding the assaults was provided by other witnesses, including the victim herself and the physician who had examined her after she reported the crime to the police." Id., at pgs. 564-65.
In the instant case, Mr. Grudberg initially did not raise a constancy of accusation claim on appeal. After the release of the Appellate Court's decision in Samuels, Mr. Grudberg added a constancy of accusation claim with the State's consent. The specific claim raised, however, was not preserved and was not reviewed. The petitioner cannot, however, show how he was somehow prejudiced, especially given that the Supreme Court eventually reversed the Appellate Court's decision in Samuels, as well as that the petitioner's constancy of accusation claim on appeal was no stronger than the defendant in Samuels.
The petitioner's specific claim here appears to be derivative of what the Appellate Court noted in a footnote were preserved claims, but not raised on appeal. State v. Spiegelmann, supra, 81 Conn.App. 451 n. 7. The petitioner had ". . . objected to the scope of the witnesses' testimony on the ground that it went into more detail of the sexual assault then Troupe permits[, as well as] . . . to the number of constancy of accusation witnesses on the grounds that the testimony was cumulative and prejudicial to him." Id. This court must still apply the same high level of deference to Mr. Grudberg's decision of which precise constancy of accusation claims to raise on appeal, whether unpreserved and unsuccessful or preserved and not raised.
Attorney McQuillan objected to the constancy of accusation testimony coming in when it was first attempted to be elicited by the prosecutor. Judge Blue and counsel, in particular Ms. Wilensky, at some length discussed Troupe and the applicable Code of Evidence Rule, § 6-11(c). The long form information had charged the petitioner with three counts of sexual assault, each based on a different manner in which the sexual assault had been perpetrated: vaginally; orally; and anally. The Court overruled the objection and concluded that the constancy of accusation testimony was permissible so that an association could be made between victim's allegations of vaginal, oral and anal contact and the pending charges. The Court later properly instructed the jury on how it was to consider the constancy of accusation testimony. Petitioner's Exhibit (Transcript, October 16, 2001), at pg. 48.
The petitioner presented testimony from Attorney Lisa Steele in support of the claim that Mr. Grudberg failed to raised a constancy of accusation claim pertaining to the oral, anal and vaginal contact. Ms. Steele indicated that the Appellate Court's decision in State v. Gonzalez, 75 Conn.App. 364, 815 A.2d 1261 (2003), released on March 4, 2003, supported the petitioner's constancy of accusation claim. A review of Gonzalez shows that in that case, contrary to the instant one, somewhat more extensive and graphic details were provided by the constancy of accusation witnesses. The Supreme Court, however, as it did with Samuels, reversed the Appellate Court, "conclud[ing] that the evidentiary impropriety was harmless and, therefore, that, contrary to the determination of the Appellate Court, the improper admission of the constancy of accusation evidence does not warrant a new trial." State v. Gonzalez, 272 Conn. 515, 517, 864 A.2d 847 (2005).
"In light of the graphic, detailed and firsthand nature of the properly admitted testimony of the victim and her half sister, and the strength of the state's evidence establishing that the defendant had sexually assaulted the victim, any possible harm that may have flowed from the brief portions of [the two constancy of accusation witnesses'] testimony that exceeded the bounds of Troupe was minimal." Id., at pg. 530. Also relevant was that the trial court had properly instructed the jury on constancy of accusation testimony. Id., at pg. 528. This court fails to see how Mr. Grudberg's failure to raise a claim premised on Gonzalez somehow inured to the petitioner's detriment.
Based upon the foregoing, the Court concludes that the petitioner has failed to show that appellate counsel rendered deficient performance because he failed to challenge the trial court's overruling the petitioner's objection to allowing the constancy of accusation witnesses to testify that the complainant told them about oral, anal and vaginal contact. Although this claim was preserved but not raised on appeal, the petitioner has failed to prove that there is a reasonable probability that but for appellate counsel's error, he would have prevailed in his direct appeal.
The second purported failure by Mr. Grudberg is that he failed, when he presented the prosecutorial misconduct claim regarding the prosecutor's cross-examination of the petitioner, to detail all of the instances of claimed misconduct, as well as failed to provide a harmless error analysis that would center on and combine the constancy of accusation and prosecutorial misconduct claims.
The petitioner's final claim on appeal was that there had been prosecutorial misconduct during cross-examination and closing argument. State v. Spiegelmann, supra, 81 Conn.App. 453. Although these claims had not been preserved, the Appellate Court reviewed them under Golding. The petitioner challenged the prosecutor's reference in closing arguments to facts not in evidence, that she appealed to the jury's passions and emotions, and that she was sarcastic and argumentative during cross-examination of the petitioner. Id., at pgs. 454-57. After its review of the first and third of these claims, the Appellate Court concluded that the petitioner had not been deprived of a fair trial. As to the claim that the prosecutor appealed to the jury's passions and emotions, the Appellate Court concluded that "[b]ecause the [petitioner had] failed to specify which statements were allegedly improper, [it] decline[d] to review this claim, as it was briefed inadequately." Id., at pg. 456.
Attorney Steele enumerated the instances that should have been identified on appeal but were not. Habeas Trial Transcript (June 9, 2009), at pgs. 23-25. Ms. Steele acknowledged that the Appellate Court at that time was more receptive to prosecutorial misconduct claims than was the Supreme Court. Quite understandably, Ms. Steele did not want to speculate as to what would have happened had the petitioner challenged prosecutorial misconduct, prevailed at the Appellate Court level, and the Supreme Court taken up the matter. Similar to Samuels and Gonzalez, the Supreme Court has reversed a number of Appellate Court decisions that reversed convictions due to prosecutorial misconduct. See, e.g., State v. Rowe, 279 Conn. 139, 900 A.2d 1276 (2006); State v. Warholic, 278 Conn. 354, 897 A.2d 569 (2006); State v. Ancona, 270 Conn. 568, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.Ct. 921, 160 L.Ed.2d 780 (2005).
"In examining claims of prosecutorial misconduct, `[courts] engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial.' (Internal quotation marks omitted.) State v. Coney, 266 Conn. 787, 808, 835 A.2d 977 (2003) . . .
"To determine whether the defendant was deprived of his due process right to a fair trial, we must determine `whether the sum total of [the prosecutor's] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties.' (Citation omitted; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 460, 832 A.2d 626 (2003). This inquiry is guided by an examination of the following Williams factors: `the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case.' (Citations omitted.) State v. Williams, [ 204 Conn. 523, 540, 529 A.2d 653 (1987).]" State v. Spencer, 275 Conn. 171, 179-80, 881 A.2d 209 (2005).
This Court, based on its own review of the criminal trial transcripts, the Appellate Court's decision, and testimony presented at the habeas corpus proceeding, in particular the Ms. Steele's enumeration of the misconduct that should have been addressed, concludes that the petitioner has not shown that but for Mr. Grudberg's failure to enumerate on appeal all instances of purported prosecutorial misconduct, he would have prevailed on appeal. A harmless error analysis, seeking to combine the alleged harmful consequences of the constancy of accusation and prosecutorial misconduct claims, would not have added a claim to the appeal that would have prevailed.
Based upon the foregoing, the Court concludes that the petitioner has failed to prove his claim of ineffective assistance by appellate counsel.
Conclusion
The petitioner has failed to prove both ineffective assistance by trial and appellate counsel. Therefore, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall prepare a judgment file, which shall be filed with the clerk within thirty days of the date of this decision.
It is so ordered.