Opinion
No. CV 04-0004526-S
November 10, 2009
MEMORANDUM OF DECISION
The petitioner, Quinton Stepney, filed a petition for a writ of habeas corpus on April 30, 2004 challenging the legality of his detention. He was charged in a criminal case bearing Docket No. CR 02-0204609 with Sexual Assault in the first degree in violation of General Statutes § 53a-70(a)(1), Sexual Assault in the Second Degree in violation of General Statutes §§ 53a-71, and Risk of Injury to a Minor in violation of General Statutes § 53-21 in the Judicial District of New Britain. After a jury trial, the petitioner was found guilty on all charges. On December 22, 2003, the court, Shortall, J., sentenced the petitioner to a term of imprisonment of thirty years, followed by ten years special parole. The petitioner was represented at trial by public defender, Claude Chong.
The petitioner appealed his convictions, which were upheld by the Appellate Court. See State v. Stepney, 94 Conn.App. 72, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2005). Attorney Andrew Stephen Knott represented the petitioner on appeal.
The present matter came before this court for a trial on the merits on August 26, 2009. The petitioner submitted exhibits including transcripts from his criminal trial, a New Britain Police Department report, and a DNA laboratory report dated September 26. The respondent introduced into evidence as exhibit "A" a copy of the appellate court decision in State v. Stepney, supra. Testifying were Dr. Michael Bourke, a Forensic Examiner II employed by the State of Connecticut, who testified before the jury in State v. Stepney, Mary Beth Raffin, another forensic specialist with the State who also testified in the underlying trial, trial counsel Claude Chong, and Mr. Quinton Stepney, himself.
FACTS
The following facts are summarized by the appellate court in State v. Stepney:
"On September 12, 2002, the victim was fifteen years of age. At approximately 2:30 p.m., she arrived home from school. She was home alone, speaking on the telephone with her friend, A, when the defendant rang the doorbell at approximately 3 p.m. She and the defendant were acquaintances; the defendant was a friend of A and had provided handyman services for the victim's mother. The defendant told the victim that he was there to use the bathroom; he asked her to permit him to enter the home. The victim permitted the defendant to speak with A on the telephone and ultimately complied with the defendant's request to enter the home. Upon entering the home, the defendant asked the victim to research something for him on her computer and went into the bathroom. When the defendant returned from the bathroom, the victim was in her bedroom. The defendant entered the bedroom, exposed his penis and told the victim that there was `something he has been wanting to do, but . . . never got the chance to.' The victim attempted to leave the room, but the defendant forcefully prevented her from doing so. The defendant struck the victim. The defendant pushed the victim onto her bed, where he pulled her pants and underwear to her knees. Despite the victim's verbal and physical protests, the defendant partially inserted his penis into the victim's vagina and performed cunnilingus on the victim. The defendant thereafter took possession of a photograph of the victim that was in the bedroom, warned the victim that he would `get back' at her if she told anyone about what had occurred and left the victim's home."
Id. at 72.
DISCUSSION
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a. habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"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 . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
Here, additional facts are necessary to the court analysis of the petitioner's claims. The respondent admits so much of the petitioner's claim that at trial the prosecution submitted before the jury DNA evidence from the underwear of the minor victim which matched the DNA from the petitioner. The DNA was collected from saliva presumably left on the victim's underwear as a result of the petitioner performing cunnilingus on the victim. (See paragraph seven of petitioner's Amended Petition; respondent's Return; trial testimony.) Both at the underlying trial of State v. Stepney and this habeas trial, Dr. Michael Bourke of the state forensic lab testified that with respect to DNA collected from the victim's underwear, five of six genetic markers came back consistent with Mr. Stepney. These lab results were in a report dated September 26, 2003. At the habeas trial, the petitioner's attorney, public defender Mr. Chong, credibly testified that he received a copy of this report. He shared the report with his client prior to trial.
At the time Chong represented the petitioner, he was an assistant public defender in New Britain and had served in that capacity since 1998. Before that, Chong was a public defender in Hartford for five years. He had attended the University Of Connecticut School Of Law where he received his law degree in 1991. Previously, Chong obtained his undergraduate degree from the University of New Haven in 1988. From 1991 to the time of his employ with the Hartford Public Defender's office, Mr. Chong was engaged in the private practice of law including work as a special public defender, representing indigent criminal defendants on a contract basis. Chong first represented the petitioner in the New Britain Judicial District sometime prior to July 2003. He had by that time tried some forty-five cases including approximately twelve sexual assault cases. By the time he represented the petitioner, Chong was an attorney experienced in matters involving criminal defense.
Upon appointment to represent the petitioner, Chong availed himself of the open file policy in New Britain. He obtained from the office of the state's attorney all reports, statements and evidence against his client. Chong also obtained a second DNA report dated July 25, 2003. The July report stemmed from a swab of the victim's vaginal area. Dr. Bourke testified the July 25th report did not reveal the presence of any DNA other than that matching the minor victim, "M.J." Dr. Bourke was unable to attribute a male source to any fluids found on the swab, including the petitioner. Hence, the petitioner was excluded as a donor of any DNA found on the vaginal swab. Chong testified at the habeas that he was aware of both DNA reports and discussed them with his client. Chong also investigated the gravamen of the results, or lack thereof. Chong contacted a group known as "Lifecodes" in Stamford, a lab dealing with DNA issues. The consulting DNA expert told Chong as a result of the matching DNA report, "[Y]our client is dead in the water." Chong concluded, he credibly testified, the petitioner and Chong as his counsel, would not likely overcome the implication of guilt stemming from the second saliva DNA test. He made a judgment that he could not overcome this test. Chong noted this alleged sexual assault was not from a stranger, but rather someone who was acquainted with the victim, someone who was observed at the front door and under false pretense was allowed into the victim's home. Chong further concluded that attempting to use the substance of the July 2003 DNA report would not have been helpful at trial given the likelihood that Mr. Stepney's profile matched the sample taken from the victim's underwear. The two tests were in no way contradictory. The victim's consistent statements implicating his client and the fact that the photograph which the victim claimed the petitioner took from her ended up in the petitioner's personal belongings within his bedroom helped to create a strong case for the prosecution.
A. Denial of Due Process Claim under Brady v. Maryland
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The petitioner in Count One alleges a stand alone Due Process claim alleging that his attorney, Mr. Chong was not provided a copy of the second July 2003 DNA report which did not confirm the presence of DNA for the petitioner, or any other male donor for that matter. The report, the petitioner continues, "would have shown that there was great doubt as to whether the petitioner was the source of the DNA given that in one report he was ELIMINATED as the source of the DNA." (Paragraph 14 of the amended petition.) Here, Mr. Chong testified he actually possessed the report prior to trial and for the reasons set forth earlier chose not to use the report. For tactical reasons, he saw no profit in using the July 2003 report when the September 26, 2003 from saliva on the victim's underwear matched the DNA of his client. This court finds any claim of Due Process violation advanced on this basis as unproven.
"[I]t is well established that a habeas court cannot in hindsight second-guess an attorney's trial strategy." Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 804, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." Id., at 801, citing and quoting Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). Chong testified he discussed the issue of the July 2003 DNA test with an expert and his client. Where counsel's decision under the circumstances to not use or reference the July DNA report makes logical sense when viewed in context with the overwhelming evidence of guilt here, this court will not grant habeas relief.
The Court need not determine whether or not the DNA test results, which found an absence of any male DNA, is in fact exculpatory under Brady v. Maryland and cases construing Brady. Where the DNA test confirmed genetic markers consistent with the female victim only, arguably, the July 2003 test neither inculpates or exculpates the petitioner. But, for the sake of this analysis, the court, assumes, arguendo, that such a DNA test result might be consistent with the petitioner's claim he committed no assault upon the minor victim and thus rises to the level of exculpatory evidence vis-a-vis Brady.
B. Ineffective assistance of trial counsel
The petitioner alleges in Count Two that his trial lawyer was ineffective and that he was deprived of his constitutional right to counsel in seven alternative ways. (Amended Petition, Count Two, paragraphs sixteen (16) through twenty-two (22)). Paragraph 16 of Count Two specifically alleges that counsel failed to adequately investigate the medical evidence, including the reports mentioned earlier, as well as a report from Mary Beth Raffin dated January 3, 2003. In the habeas trial, Mary Beth Raffin testified that she was at the time of the investigation of the petitioner and at present employed by the State Forensic Laboratory in Meriden, Connecticut. She also testified in the trial of State v. Stepney. She testified at the habeas trial that the January 2003 report concluded no seminal fluid was found on the victim's panties. There was, the forensic biologist testified, one positive finding for semen on the vaginal swab, but none on the underwear. Her tests were checked and cross checked.
For the reasons set forth in Section "A" of this decision, the petitioner has failed to establish deficient performance by his attorney with respect to any medical investigation conducted, especially with respect to the DNA sample results. The petitioner has failed to show "what benefit additional investigation would have revealed." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). For the foregoing reasons, the allegation in paragraph seventeen of Count Two is unproven.
Paragraph eighteen of Count Two alleges that Mr. Chong failed to adequately cross examine the minor victim on the "discrepancy between testimony at trial and the police report." In the habeas trial, attorney Chong explained his process in navigating the potential minefield of the sexual assault victim's testimony. Mr. Chong cogently explained that in his experience trying sexual assault cases; it (i.e., guilt vs. innocence) ultimately comes down to whether the jury believes the complainant or the defendant, in this case, Mr. Stepney. Chong stated: "You can raise every single inconsistency you can find, ultimately it will have no impact . . . My cross examination strategy [here] would be to raise inconsistency if I felt it would bring into question the credibility of the witness." Discrepancies between the times of the reported event as related in the police report versus the time at which the witness testified in court the event occurred would not have impacted the credibility of the witness. "The case comes down to the credibility of the complainant and Mr. Stepney and DNA evidence and corroborating witnesses," Chong testified. Credibility on the time line, Chong went on to explain, does not mean the witness is lying. By the same token, if the witness had later spoken with someone other than the individual identified in the police report, that would also not likely raise reasonable doubt.
Here, Chong strategized from a perspective of a trial lawyer with twenty acquittals and having handled "thousands" of cases. Here, the lawyer explained it doesn't help to attack a sexual assault victim on a time line where she knew the petitioner, the petitioner's own wife implicated him in the crimes, the petitioner changed his story as to whether he was even at the victim's house, and there was testimony he spoke to the victim's friend on the phone while in the victim's house, not to mention the powerful DNA evidence linking the petitioner to the victim's underwear. Chong explained his client was convicted in part by the "web of untruths he told." A lawyer's line of questioning on examination of a witness is clearly tactical in nature. See State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002). The petitioner has failed to prove the allegations in paragraph eighteen.
The petitioner also claims in paragraph nineteen of Count Two that trial counsel failed to point out to the jury during closing argument claimed discrepancies between police testimony and the testimony of his ex-wife. This claim is baseless and premised upon pure speculation. The petitioner makes reference to language by the trial court, Shortall, J., that the court would be "surprised" if attorney Chong did not raise this during closing. It is well accepted that closing argument is not evidence and juries are bound to follow the evidence as it pertains to the claims made by the prosecution. The jury was so advised here.
Chong testified that he was hampered in part by a client who was facing overwhelming evidence of guilt including the theft of a photo of the victim discovered by the victim's wife who testified at trial. The court had occasion to listen and view the testimony of the petitioner. The petitioner was not credible. Chong testified the petitioner insisted on advancing a convoluted theory of conspiracy between the victim and an alleged lesbian female friend. The court accredits Chong's testimony that the petitioner would not discuss his testimony with his attorney before he took the witness stand. Chong said the petitioner's testimony was so incredible that no reasonable juror would believe it. Chong concluded that the defense had no defense or that no jury would find the defense reasonable. Evidence with respect to the claims in paragraph nineteen is lacking. There is no ineffective assistance of counsel on this basis.
The petitioner claims in paragraph twenty that his trial lawyer failed to cross examine Dr. Bourke about whether the DNA test he ran matched the petitioner's DNA "to the victim's articles," and that the lab was not accredited at the time it performed the analysis. In short, the petitioner has failed to prove either claim here. Dr. Bourke testified the lab was indeed accredited prior to 2002. For reasons previously outlined, the petitioner does not prevail on his claim of inadequate cross examination of witnesses. The evidence against the petitioner was overwhelming. In addition, Chong testified that he had nothing to refute the scientists here. "Why beat a dead horse or waste time?" he theorized. If he were to challenge the lab witnesses, Chong said he would need a reason. He had none, by his estimation. There is no deficient performance with respect to the scope of cross of Dr. Bourke. "An attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." State v. Drakeford, supra, 63 Conn.App. 427. In light of the totality of the evidence upon which the jury returned verdicts of guilty, no prejudice has been established by any conduct or lack thereof with respect to cross examination of Dr. Bourke.
Paragraph twenty-one alleges ineffective assistance with respect to examination of the victim and the victim's friend as to discrepancies in the time sequence of events. For reasons already addressed, the petitioner has failed to prove this claim.
Lastly, the petitioner claims in paragraph twenty-two that Mr. Chong failed to call a material witness to refute the time frame of the alleged incident. In the context of a claim for ineffective assistance of counsel, "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it . . ." (Internal citations and quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). Furthermore, ". . . in the context of a claim for ineffective assistance of counsel, `[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.' State v. Talton, 197 Conn. 280, 297, 497 A.2d 35 (1985)." Johnson v. Commissioner of Correction, 288 Conn. 53, 64, 951 A.2d 520 (2008).
Here there is insufficient proof to establish that had Mr. Chong called any particular witness, the testimony would likely have altered the outcome. This is the essence of pure speculation. There is no deficient performance. Again, there being overwhelming evidence of guilt, the petitioner has not established prejudice. "To satisfy the prejudice prong [of the Strickland analysis], a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. The petitioner's claims are unproven.
CONCLUSION
The petitioner has failed to demonstrate that he was victim of a due process violation stemming from a claim under Brady v. Maryland or that he received ineffective assistance of his trial counsel. The petition for a writ of habeas corpus is denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.