John J. McGrath, Jr. v. State of Connecticut (2010)

MEMORANDUM OF DECISION

FACTS AND PROCEDURE:

In 2002 the petitioner (“John McGrath” hereinafter also “McGrath”) was found guilty after a bench trial by Mulcahy, J. of four counts of sexual assault in the first degree, three counts of sexual assault in the second degree and two counts of risk of injury to a minor.   Subsequently, the trial court (Mulcahy, J.) sentenced the petitioner to a total effective sentence of eighteen years suspended after eleven years incarceration and twenty years probation.

The petitioner brought a petition for a new trial based on newly discovered evidence which was denied on August 9, 2007 by Miller, J. However, by date of February 1, 2006 the petitioner filed an amendment to the petition for a new trial claiming ineffective assistance of counsel which can be considered a second count of the petition.   This in effect is a petition for a habeas corpus, and the habeas petition was tried before this Court on July 20, 2010 and July 22, 2010.

The petitioner was self represented, and the major witness he called was his trial counsel in the underlying criminal case, Attorney John O'Brien.   His other witnesses included his present wife, his sister and Assistant States Attorney Ann Mahoney.

STANDARD OF REVIEW:

Under the ruling of Strickland v. Washington, 466 U.S. 668 (1984), there is a two-prong requirement that must be met in order to succeed on a habeas petition.   First, the petitioner must prove ineffective assistance of counsel and secondly must prove that but for counsel's errors the outcome would have been different.

In addition, the petitioner must prove his case by what is called a preponderance of the evidence, that what is sought to be proven is more likely so than not so.

The petitioner in his aforementioned amendment has set forth paragraphs (38-47) claiming the basis for his belief that Attorney O'Brien provided ineffective assistance of counsel in the underlying case.   The Court will address these claims as follows:

“38. Defense Attorney O'Brien became co-counsel June 5, 2002, one week before trial.”   The fact is that he was appointed as stand-by counsel on June 5, 2002 whose primary duty was to assist with advice to the petitioner concerning primarily procedure during the trial.

“39. Defense Attorney O'Brien filed appearance as trial attorney June 12, 2006, (sic) (2002) the day of trial.”   This is true as noted by the retainer agreement signed by Attorney O'Brien and the petitioner, plaintiff's Exhibit Eight.

“40. Defense Attorney O'Brien did not request a continuance or extension to review case.”   This is true as was admitted by Attorney O'Brien.

“41. Defense Attorney O'Brien received copy of hand written information from prosecution that changed, altered and added information from pretrial claims to be testified to by the complainant, no continuance or extension requested.”   Attorney O'Brien, on the day of trial, received from the prosecution a copy of a notebook handwritten by the alleged victim which marked somewhat of a change in her original allegations, and it is true that Attorney O'Brien did not request a continuance to investigate this document.   However, he did testify that at nights and on weekends he did review the notebook and compare it to the previous allegations made by the alleged victim.

“42. Defense Attorney O'Brien received copy of Department of Children and Families report in court first day of trial, never seen before by defense, no continuance or extension requested.”   This was admitted by Attorney O'Brien at the habeas trial.

“43. No objection to dates and descriptions being changed were raised by Defense Attorney O'Brien.”   Attorney O'Brien testified that he cross-examined the alleged victim on the changes that she had made.

“44. Witness Dr. Berrien called by prosecution as expert witness, not disclosed by State as an expert witness, nor was the opinion disclosed before Dr. Berrien was called to testify.”   This was agreed during his testimony by Attorney O'Brien.   However, he described how he had cross examined Dr. Berrien and shown in the cross examination that he had no justification or corroboration for her allegations.   Dr. Berrien had testified that the girls hymen would grow back and Attorney O'Brien effectively cross examined Dr. Berrien on that statement and made her look ridiculous.

“45. No objection by Defense Attorney O'Brien in accordance with Connecticut Code of Evidence 7-4, ‘Disclosure of Expert Witness', or extension requested to find expert or documentation to counter testimony, ‘Prejudicial Cause Standard.’  “ Attorney O'Brien in testimony at the habeas trial admitted that he did not ask Assistant State's Attorney Mahoney to disclose expert witnesses.   However, Attorney O'Brien was nevertheless effective in his cross examination of Dr. Berrien.

“46. Defense Attorney O'Brien did not motion for new trial, petition for new trial, motion to dismiss, motion for mistrial, due to undo surprise, suppression of evidence or prosecutorial misconduct.”   Attorney O'Brien did admit that he did not move for a mistrial.   He did not recollect whether he had moved for any other motions described.   This was a trial tactic because he apparently believed that these motions did not have a basis and would be rejected.

“47. Defense Attorney O'Brien did not preserve these issues on record for appeal.”   There was no evidence brought forth during the habeas proceedings to support this allegation.   Further, the transcript has all of the evidence that was put forward which could be grounds for appeal.

Even Attorney O'Brien admitted that he had been deficient in not seeking an investigation or seeking a continuance, but not knowing what a further investigation would do or accomplish the Court disagrees with Attorney O'Brien who was very candid in his testimony, and his statements could have been in part because he still believes in the innocence of the petitioner.   But the Court finds on the totality of the evidence that there may have been deficiencies in Attorney O'Brien's representation of the petitioner but they do not reach the level of ineffective assistance of counsel.¹

Has the Petitioner Sustained his Burden of Proving that but for Counsel's Errors the Outcome Would have been Different?

The short answer is No.

This is the second prong of Strickland v. Washington, supra and on which many petitions for habeas corpus fail.   This Court, at least three times, during the hearing warned the petitioner that this was an essential part of his case and he had to prove that the outcome would have been different if there had been no errors on the part of trial counsel.

This Court believes that the petitioner was aware of this but has not sustained his burden of proving that the outcome would have been different.   The alleged victim did admit that she made a mistake when she first stated that there was a mole on the petitioner's genitals and later stated that it could have been a freckle on his genitals.   She admitted that she did not see either a mole or a freckle.   However, with this information the jury apparently still believed her account of what happened.   This is not the fault of the trial counsel, Attorney O'Brien.   He cross examined her as to her change of allegations and specifically about the presence of a mole and/or a freckle.

What would a further investigation have shown?   What would a psychiatrist have testified to even assuming the Court would order such an examination and whether or not the conclusion would have been or not been schizophrenia.   The fact that Attorney O'Brien did not move for a continuance means that he, perhaps, could have conducted a more thorough investigation as to the alleged victim's claims.   However, it is pure speculation as to what he would have found and whether or not it would have done any good for the petitioner's case.   Attorney O'Brien seemed to do a competent job on cross examination of the State's witnesses, and there is no indication as to what he would have found by further investigation or by a continuance that would have been beneficial to the petitioner's defense.   We don't know what the result would have been, so the Court has to conclude that it is only speculation and therefore inadmissable as to what would have happened if errors made by Attorney O'Brien had not been made.²

Accordingly, the petitioner has not sustained his burden, even by a preponderance of the evidence of proving that for counsel's errors the outcome would have been different.

CONCLUSION

It might have been a close call as to Attorney O'Brien's admitted deficiencies, but overall from the totality of the evidence the Court concludes that Attorney O'Brien's performance representing the petitioner was not ineffective assistance of counsel.

Further, and most important, the petitioner has failed to prove that but for counsel's errors the outcome would have been different.   Accordingly, the petition for habeas corpus is denied.

Rittenband, JTR

FOOTNOTES

FN1. Attorney O'Brien's response as to why he didn't call expert witnesses for the defense, in particular as to whether the alleged victim/complainant was suffering from schizophrenia, was that there was a lack of financial resources to obtain the testimony or deposition of a psychiatrist who charged very high fees for such examination and testimony..  FN1. Attorney O'Brien's response as to why he didn't call expert witnesses for the defense, in particular as to whether the alleged victim/complainant was suffering from schizophrenia, was that there was a lack of financial resources to obtain the testimony or deposition of a psychiatrist who charged very high fees for such examination and testimony.

FN2. Having said that, the court does not know of any additional evidence that would have changed the outcome.   The petitioner had a nearly impossible burden..  FN2. Having said that, the court does not know of any additional evidence that would have changed the outcome.   The petitioner had a nearly impossible burden.

Rittenband, Richard M., J.T.R.