107398 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On August 12, 2005, the petitioner, Richard Saucier, filed a petition for a writ of habeas corpus, which was amended on March 31, 2009, again on May 21, 2009, and for a third time on August 11, 2009.   The petitioner claims that he was denied the effective assistance of trial and appellate counsel in violation of the sixth and fourteenth amendments of the United States constitution and article first, § 8, of the constitution of Connecticut in a number of ways.   In count one, the petitioner claims that his appellate counsel failed to properly brief a preserved claim that the trial court had improperly concluded that a statement made by a witness for the petitioner was inadmissible hearsay.   In count two, the petitioner claims that his trial counsel failed to have a DNA expert testify on the petitioner's behalf and failed to effectively cross examine the state's DNA expert at trial.   For reasons stated more fully below, the petition is denied.

The matter came to trial on November 2, 2009.   The court heard testimony from the petitioner, Attorney Glenn Falk, his appellate counsel, Attorney Gregory St. John, his trial counsel, and Carl Ladd, a DNA expert, and Karen Lamy, a forensic biologist, both employed by the Connecticut Forensic Laboratory.   Neither party placed any exhibits in evidence.   The petitioner and the respondent filed posttrial briefs on January 29, 2010 and July 26, 2010, respectively.   Having reviewed all of the testimony, the Court makes the following findings of facts.

FINDINGS OF FACT

1.  The petitioner was the defendant in a criminal case in the judicial district of Waterbury, bearing docket number CR02-0307175, in which he was charged, under a substitute information, with six counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and with one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A).

2. At all times in the criminal matter, the petitioner was represented by Attorney Gregory St. John. Attorney St. John has been practicing law in Connecticut for thirty-two years.   He practices in the areas of criminal law, domestic relations and juvenile law.   He has tried about two dozen cases to verdict.   He has had a contract as a special public defender with the office of the public defender for over twenty years.   As a special public defender, he has handled both misdemeanors and felonies, including sexual assault cases.

3. On June 6, 2003, after a jury trial, the petitioner was found guilty of four counts of sexual assault in the first degree and of kidnapping in the first degree.   He was found not guilty of two counts of sexual assault in the first degree.

4. On September 10, 2003, the trial court, D'Addabbo, J., sentenced the petitioner to a total effective sentence of thirty years imprisonment, with ten years special parole.

5. The petitioner appealed from the judgment of conviction.   Attorney Glenn Falk represented the petitioner on appeal.   Attorney Falk has been practicing law in Connecticut since 1985.   He received his undergraduate degree from Harvard College in 1982 and his law degree from Harvard Law School in 1985.   He also has a Master's degree in history from Trinity College.   For the first twelve years of his practice, he handled civil cases, primarily federal and state housing cases, for New Haven Legal Assistance.   During that time, he handled two appeals of those cases.   After that twelve year period to the present time, Attorney Falk has handled criminal cases for New Haven Legal Assistance.   He has had ten to twelve jury trials, several hundred cases resulting in plea bargains, a number of cases resulting in nolles or dismissals and about forty to fifty criminal appeals.

6. The Appellate Court affirmed the petitioner's convictions.   See State v. Saucier, 90 Conn.App. 132, 876 A.2d 572 (2005).   The petitioner appealed to the Supreme Court which granted certification as to a limited issue and affirmed the judgment of the Appellate Court.   See State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007).

7. As stated by the Appellate Court, the jury could have reasonably found the following facts regarding the underlying offenses:  “On January 10, 2002, the [petitioner] telephoned the victim and asked her to cover a shift as a bartender at a restaurant.   The victim agreed and later was picked up by the [petitioner], who drove her to work.   Following her shift, the victim drove with the [petitioner] to a friend's house, where they smoked marijuana.   The two left after twenty minutes.   The victim was under the impression that the [petitioner] was going to drive her home.   Instead, he drove her to a deserted tractor-trailer park, then to a highway underpass and finally to his home.   The [petitioner] brutally and repeatedly sexually assaulted the victim at each location.   Early the next morning, after the [petitioner] had fallen asleep, the victim escaped and ran virtually naked to a nearby business, where the police were called.   The police took the victim to a hospital, stopping briefly en route in order for the victim to point out the [petitioner's] home.”   State v. Saucier, supra, 90 Conn.App. 134-35.

8. Additional facts will be discussed as needed.

DISCUSSION

Before addressing the merits of the petitioner's claims, it is necessary to address a procedural argument raised by the petitioner in his post-trial brief.   In his post-trial brief, the petitioner argues, for the first time, that since the respondent did not file a return to the third amended petition, the entire petition should be deemed admitted.   In the alternative, he argues that only the additional allegations made in the third amended petition should be deemed admitted.

As noted supra, the petitioner amended his petition on March 31, May 21 and August 11, 2009.   The respondent filed a return to the second amended petition, denying its material allegations, but did not file a return to the third amended petition.   After the trial, on July 26, 2010, the respondent filed a motion requesting to file a return to the third amended petition, which this Court denied, as the trial had already been completed.   This Court finds that the respondent's return to the petitioner's second amended petition applies to the third amended petition pursuant to Practice Book § 10-61, which provides in relevant part, “[w]hen any pleading is amended ․ [i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”

The only difference between the second and third amended petition is that the third amended petition contains the following additional allegation:  “But for the petitioner's trial attorney failing to cross examine the DNA expert on the fact that the lab did not find out what bodily fluid of the alleged victim that the bodily fluid came from [sic] “ ¹ As this is an additional, albeit incomplete, allegation, the return to the second amended petition cannot be regarded as addressing it.   Pursuant to Practice Book § 10-19, “[e]very material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief.”   However, “[a]lthough the failure of a party to deny the material allegations of a pleading operates so as to impliedly admit the allegations, a default does not automatically trigger judgment for, or the relief requested by, the pleader.”   Commissioner of Social Services v. Smith, 265 Conn. 723, 736-37, 830 A.2d 228 (2003).   Accordingly, even if deemed admitted, the additional allegation in the petitioner's third amended petition does not automatically entitle him to habeas relief.   The allegation is incomplete and the petitioner must demonstrate both deficient performance and prejudice to succeed on a claim of ineffective assistance of counsel.

Ineffective Assistance of Counsel

“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;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).  “Moreover, when a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”  (Internal quotation marks omitted.)  Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).

Appellate Counsel

In count one of his third amended petition, the petitioner alleges that his appellate counsel rendered ineffective assistance by failing to properly brief on appeal the claim that the trial court had improperly excluded a statement made by a witness for the petitioner as inadmissible hearsay.   Specifically, the petitioner contends that his appellate counsel should have argued in his brief to the Appellate Court, as he did in his brief to the Supreme Court, that the statement was not hearsay.

During the trial, Attorney St. John, the petitioner's trial counsel, attempted to admit into evidence testimony that the victim called an acquaintance the day after the assault and said, “I got Richie [the petitioner].   I got him good.”   State v. Saucier, supra, 283 Conn. 211.   Attorney Falk, the petitioner's appellate counsel, claimed on appeal to the Appellate Court that the victim's statement was admissible under the state of mind exception to the hearsay rule.   On appeal to the Supreme Court, he also claimed that the victim's statement was admissible because it was not hearsay at all.   The Supreme Court declined to address this additional claim because it concluded that the petitioner “had abandoned it by failing to mention it in his brief to the Appellate Court.”  Id., 223.

At the habeas trial, Attorney Falk explained that he did not brief the claim that the victim's statement was not hearsay to the Appellate Court because he believed the trial court had implicitly rejected any such claim by ruling that the statement did not fall under the state of mind exception to the hearsay rule and because he did not believe the claim had merit.   He also explained that the Appellate Court could have dismissed the claim for not being properly preserved at trial as the claim was raised by trial counsel in an ambiguous fashion.   Attorney Falk testified that he only briefed the claim to the Supreme Court because at that time he had the assistance of a student from Yale Law School who convinced him that the claim “possibly had merit.” ²  He also testified that there was not a lot of Connecticut case law on the issue.

“The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client ․ By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal.”  (Citation omitted.)  Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988), overruled in part on other grounds by State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010).   “[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel.   Legal contentions, like the currency, depreciate through over-issue ․ [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one ․ The effect of adding weak arguments will be to dilute the force of the stronger ones.”  (Internal quotation marks omitted.)  Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

Attorney Falk initially did not believe that the claim that the victim's statement was not hearsay had merit;  he was only later convinced by a law student that it had some possible merit.   Accordingly, he did not raise the claim at the Appellate Court.   Attorney Falk's tactical decision not to pursue a claim that he initially did not think had much merit does not constitute deficient performance.   As an experienced appellate attorney, he raised the claims that he deemed to be most persuasive.   This Court will not second guess his decisions.   In any event, even if deficient performance is presumed, the petitioner's claim would still fail for lack of a showing of prejudice.   The petitioner did not present any evidence demonstrating that had Attorney Falk raised the claim at the Appellate Court and thus, preserved the claim for review at the Supreme Court, he would have prevailed in his direct appeal.

Trial Counsel

In count two of his third amended petition, the petitioner claims that his trial counsel rendered ineffective assistance in that he failed to effectively cross examine the state's DNA expert and to have a DNA expert testify on the petitioner's behalf.   Specifically, he contends that Attorney St. John should have cross examined the state's DNA expert on the fact that the forensic lab did not identify the biological source of the victim's DNA that was found on the petitioner.   He also contends that Attorney St. John should have had a DNA expert explain that DNA can be transferred indirectly from a person to a towel to another person.   The petitioner asserts that if this information was before the jury it would have created a reasonable doubt that he committed the crimes.

Although he did not work on the petitioner's case, Carl Ladd, a supervisor of the DNA section at the state forensic lab, having reviewed the petitioner's case, testified at the habeas trial that two known DNA samples were taken, one from the petitioner and one from the victim, and that a penile swab was also taken from the petitioner.³  He stated that the DNA found on the penile swab matched the victim's DNA. He did not know the biological source of the DNA but explained that serological testing can sometimes identify the source.   Ladd further explained that while it is theoretically possible that DNA can be transferred to a towel from one person and then transferred to another person from the towel, it is highly improbable.   He stated that such an indirect transfer would be difficult to detect and that as the majority of the DNA recovered from the penile swab taken from the petitioner was from the victim, it was unlikely that the victim's DNA was transferred indirectly to the petitioner from a towel.   Karen Lamy, an expert in serology, testified that serological testing was not done to determine the biological source of the victim's DNA that was found on the penile swab.   She explained that testing could have been done to identify the source but that sometimes testing is not done in order to preserve the sample for DNA testing.

Attorney St. John testified at the habeas trial that he did not find the DNA results in the petitioner's case to be very probative in terms of establishing guilt beyond a reasonable doubt.   He did not consult anyone regarding them.   He could not recall whether he asked the state's DNA expert about the biological origin of the DNA found on the petitioner.   He explained that the case came down to a credibility issue.   The petitioner testified at the habeas trial that the victim and he fell asleep naked next to each and that he fell asleep on a wet towel that the victim allegedly used after taking a shower.

Regardless of whether Attorney St. John's failure to point out on cross examination of the state's DNA expert that the specific biological source of the DNA found on the petitioner was unknown and his failure to have a DNA expert testify that there was at least a theoretical possibility that DNA could be transferred from one person to another person indirectly constitutes deficient performance, the petitioner has not demonstrated that there is a reasonable probability that, but for these alleged errors, the outcome of the trial would have been different.  “A reasonable probability is one which is sufficient to undermine confidence in the result.”  (Internal quotation marks omitted.)  Vasquez v. Commissioner of Correction, 111 Conn.App. 282, 286, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008).   As testified to by Attorney St. John, the victim's report of the crime was immediate.   She ran naked from the petitioner's apartment to a nearby hair salon to call the police.   The phone was not working at the hair salon so she went next door to a luncheonette wearing only a hair salon apron.   Upon calling the police, she was taken to the hospital where photos of her injuries were taken.   The victim, the owner of the hair salon, two police officers, the emergency medical technicians who treated the victim and an individual from the luncheonette all testified at the criminal trial.   In light of the above, it is unlikely that the fact that the specific biological source of the victim's DNA found on the petitioner's penis was unknown and the fact that indirect transfer of DNA is theoretically possible would have rendered the petitioner's testimony of what happened more credible or would have created a reasonable doubt as to his guilt.   As Ladd testified, while indirect transfer of DNA may be theoretically possible, it is highly improbable and given the amount of the victim's DNA recovered from the penile swab of the petitioner it was specifically unlikely to have occurred in the petitioner's case.   Accordingly, the petitioner's ineffective assistance claim against Attorney St. John fails on the prejudice prong.

CONCLUSION

For the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

Santos, J.

FOOTNOTES

FN1. Third Amended Petition, Count Two, ¶ 8..  FN1. Third Amended Petition, Count Two, ¶ 8.

FN2. November 4, 2009 Habeas Trial Transcript, p. 46..  FN2. November 4, 2009 Habeas Trial Transcript, p. 46.

FN3. Ladd explained that a known sample is taken merely to identify the person's own DNA. DNA testing was not done to determine whether the petitioner's DNA was on the victim..  FN3. Ladd explained that a known sample is taken merely to identify the person's own DNA. DNA testing was not done to determine whether the petitioner's DNA was on the victim.

Santos, Thelma A., J.