300221 v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Vandoroll Richards, alleges in Count One of his Amended Petition for a writ of habeas corpus, filed on May 29, 2010, that he was denied the effective assistance of counsel at the trial of his criminal case, docket number CR02-183023, in violation of both the United States and Connecticut Constitutions.   He further alleges in Count Two that his due process rights were violated by errors committed by his trial counsel and the trial court, and that those errors resulted in an unreliable conviction.   He asks that the judgment of conviction in that case be vacated and the matter be remanded to the trial court for further proceedings.

The petitioner's claim of ineffective assistance of counsel is a broad brush attack on virtually everything trial counsel did from pre-trial consultations with the petitioner through sentencing.   This includes, among other things:  1) trial counsel's failure to properly advise the petitioner in connection with pre-trial plea negotiations;  2) how trial counsel handled a suppression hearing;  3) how trial counsel investigated and presented, or failed to present defenses;  4) how trial counsel cross-examined witnesses;  5) how strenuously trial counsel argued certain points;  and 6) the length of trial's counsel's closing argument.

As to Count Two, the petitioner merely incorporates the allegations from Count One and alleges that the conduct of trial counsel and the trial court somehow constitute a due process violation separate and apart from that alleged in Count One.¹

The respondent has denied the allegations in both counts.   In addition, the respondent has moved to dismiss Count Two because it fails to state a cognizable claim.

The matter came to trial before the court on September 23, 2010 and October 25, 2010.   The petitioner presented just two witnesses.   The first witness was Mary Luddy, a secretary at the school at the MacDougall-Walker correctional facility where the petitioner is currently incarcerated.   The other witness was the petitioner himself.   The respondent presented one witness, petitioner's trial counsel, attorney Jeremy Weingast.   The court also received as exhibits the transcripts of all proceedings from the underlying criminal case, from the petitioner's arraignment through sentencing.  (Res. Ex A;  Pet. Ex. 7-12.)   Also submitted as exhibits were various school records for the petitioner since he has been incarcerated.  (Pet.Ex. 1-4.)   The court also received the presentence investigation report prepared after the petitioner was convicted (Pet.Ex. 5), an article on the impact of sleep deprivation on decision making (Pet Ex. 6), evidentiary motions filed during the underlying criminal proceedings (Res.Ex. C-E), and the ruling of the Division of Sentence Review affirming the trial court's sentence.  (Res.Ex. F.)

The court will first address the respondent's motion to dismiss Count Two before turning to its analysis of any remaining claims.   The respondent's motion to dismiss argues that the petitioner's claims are procedurally defaulted because he never raised them at trial or on direct appeal.   Further, the respondent argues that Count Two is essentially a claim of cumulative prejudice and our Supreme Court has repeatedly rejected such claims.

The petitioner does not dispute the categorization of Count Two as a claim of cumulative prejudice.   Instead, he claims that it is a proper claim that has been recognized by a number of courts.

There are two problems with the petitioner's claim.   First, Count Two is virtually indistinguishable from Count One. At oral argument on the motion, petitioner's counsel acknowledged that Count Two is based entirely on the same alleged errors by trial counsel that form the basis for Count One. Thus, both Counts One and Two allege that the petitioner's constitutional rights were violated because he did not have the effective assistance of counsel.   If the court agrees with the petitioner as to Count One, then his petition will be granted and Count Two is superfluous.   If the court disagrees with the petitioner as to Count One, then there was no ineffective assistance of counsel and the purported due process claim in Count Two would fail.   The court fails to see how Count Two raises a separate cognizable claim that is any way different than what has been alleged in Count One.

Second, while other courts have considered claims of cumulative prejudice, our appellate courts have, in fact, repeatedly rejected such claims.   Most recently, in Anderson v. Commissioner of Corrections, 114 Conn.App. 778, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009), the petitioner argued that “the cumulative effect of impropriety by the trial court and the prosecutor deprived him of a fair trial, sentencing and appeal.”  Id., 795.   The court rejected the claim.   In doing so, it noted, “our Supreme Court rejected a similar argument in State v. Robinson, 227 Conn. 711, 746-47, 631 A.2d 288 (1993), and, therefore, we reject the petitioner's claim in the present case.   As explained in Robinson, the court ‘declined[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.’  (Internal quotation marks omitted.)   Id., 747.   We conclude therefore that because we have found no erroneous factual, evidentiary or legal errors, the combined claims cannot give rise to a constitutional violation.”  Id., 795-96.

Similarly, here either the claim of ineffective assistance in Count One sets forth a constitutional claim or it does not.   There can be no claim of cumulative prejudice greater than the prejudice found in Count One. This is particularly true given that Count Two alleges no errors that are not alleged in Count One. For these reasons, the motion to dismiss Count Two is granted.²

The court now turns to the claim of ineffective assistance of counsel set forth in Count One.

BACKGROUND

The petitioner was the defendant in a criminal case, docket number CR02-0183023, in the Judicial District of Hartford, in which he was charged with nine counts of Sexual Assault in the First Degree in violation of Conn. Gen.Stat. § 53a-70(a)(2) and three counts of Risk of Injury to a Minor in violation of Conn. Gen.Stat. § 53-21(a).   The petitioner was represented at the trial court level by Attorney Jeremy Weingast.

On March 14, 2003, the trial court conducted an evidentiary hearing on the petitioner's motion to suppress an inculpatory statement he had given to the police prior to being arrested.   The petitioner argued that the statement was not voluntary because he was under the influence of alcohol, sleep deprived, and without being read his Miranda rights under conditions leading him to believe he was in custody.   After hearing the testimony of the petitioner and the two officers who conducted the interview at which the statement was made, the trial court denied the motion to suppress.

The evidentiary portion of the petitioner's trial began on March 25, 2003 and the jury returned its verdict on March 28, 2003, finding the petitioner guilty on all counts charged.   On May 30, 2003 the trial court sentenced the petitioner to a total effective sentence of fifty-five years, execution suspended after forty years and ten years of probation.   The petitioner did not appeal his conviction.   He did seek sentence review.   On June 1, 2007, his sentence was affirmed by the Division of Sentence Review.

Based upon the evidence presented at trial, the jury could have reasonably found the following facts.   Beginning approximately in early July 2001 the petitioner began having criminal sexual contact with the complaining witness.   At the time, the complaining witness was 11 years old and was the daughter of the petitioner's long time girlfriend.   The complaining witness and her mother had lived with the petitioner since the complaining witness was five years old.   The petitioner and the complaining witness's mother also had a younger daughter that lived with them.

The petitioner's conduct towards the complaining witness was discovered several months after it began.   In March 2002, the complaining witness told her friends that she had been sexually assaulted by a teacher and two janitors who worked at her school.   She claimed that the assaults took place at her home.   When questioned by school administrators and the police about this alleged abuse the complaining witness admitted that the allegations were untrue.   She then told the police that she was having sex with her boyfriend, Louie.   When the police could not find Louie, they decided they needed to talk to the complaining witness again about discrepancies in her story.   On March 12, 2002, Detective Wayne Mora went to the home of the complaining witness to interview her again.   The petitioner was also present.

Later on March 12, 2002, the complaining witness disclosed to her Uncle Mark that she had been having sex with the petitioner.   The petitioner was at his job at the Hartford Courant when this disclosure was made.   That day, the petitioner went into work around 5:00 p.m. and worked to approximately 5:30 a.m. the following morning.   Mark told the complaining witness's mother about the disclosure.   She then called the police.   The police then did a “minimal” factual interview of the complaining witness and did not ask her for the details of the sexual contact between her and the petitioner.

The police then called the petitioner and told him that they needed to talk with him.   As the petitioner was at work, he agreed to meet the police at the police station at 10 a.m. on March 13, 2002.   The petitioner did in fact show up at the police station at the agreed upon time, driving himself from his mother's house in Hartford to Manchester.   Once there, he met with Detective Mora and Detective Max Cohen.   The petitioner was told that he was not under arrest and was free to go at any time.   The petitioner did not appear to be sleep deprived or under the influence of alcohol.   Neither detective smelled any alcohol on the petitioner.   Detective Mora told the petitioner that they needed to know if the petitioner had done anything to his own daughter, the complaining witness's half-sister.   The petitioner denied in any way hurting his daughter, and then, without further questioning from the detectives, admitted that everything the complaining witness was saying was true, and that he was having sex with her.   The petitioner then provided the detectives with a detailed statement of his conduct towards the complaining witness.   The statement was typed, reviewed orally, paragraph by paragraph, with the petitioner and then signed by him.   The petitioner then left the police station.

On March 15, 2002, the complaining witness was interviewed at the St. Francis Children's Center by Lisa Murphy, a clinical child interview specialist.   It was during this interview that the complaining witness first disclosed the details of her sexual contact with the petitioner.   The information and details provided by the complaining witness were consistent with the statement the petitioner provided to the police two days earlier.   She described a history of regular sexual intercourse between her and the petitioner that began in approximately July 2001 and ended on March 12, 2002, the day she made her first disclosure to her uncle.   She described the type of sexual intercourse she engaged in with the petitioner and the location in the home and the approximate dates and times when the contact took place.   The details she provided were the bases for the nine sexual assault charges and two of the risk of injury charges of which the petitioner was tried and convicted.

In addition, the complaining witness disclosed that the petitioner had provided her with pornographic videos to watch and described where they were located in the basement of her home.   On March 19, 2002, Detective Mora obtained the consent of the complaining witness's mother to search the basement for the videos.   He found them where the complaining witness said they would be.   This information provided the basis for the final risk of injury charge of which the petitioner was convicted.

LEGAL STANDARD

To succeed in his bid for a writ of habeas corpus, the petitioner must prove that his trial counsel was ineffective.  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984);  ․ Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial ․” (Internal citations and quotation marks omitted.)   Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness ․ In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a petitioner 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 petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504-05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

“The Constitution guarantees criminal defendants only a fair trial and a competent attorney.   It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.   The petitioner is also not guaranteed assistance of an attorney who will make no mistakes ․ What constitutes effective assistance of counsel is not and cannot be fixed with yard-stick precision, but varies according to the unique circumstances of each representation ․” (Internal citations and quotation marks omitted.)  Id., at 505.

When the claim is that trial counsel failed to conduct an adequate investigation, the analysis is no different.  “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable;  and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.   In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.   In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”  Strickland, supra, 466 U.S., 690-91.

In exercising his judgment as to the amount of investigation necessary defense counsel is entitled to rely on information provided to him by the client.   “Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.   In particular, what investigation decisions are reasonable depends critically on such information.”  Id., 691.   Consequently, “inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.”  Id.

As to the prejudice prong, “an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment ․ The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.   Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”  Strickland v. Washington, supra, 691-92.   Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense.  Id., 693.   Put another way, in order to meet the prejudice prong the petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.

DISCUSSION

In the present matter, the petitioner takes issue with almost everything Attorney Weingast did in representing him.   Despite the far-reaching nature of the petition, the petitioner offered little evidence to support his allegations.   Nevertheless, the court will discuss each of the claims made by the petitioner.

1. Plea Discussions.   The petitioner claims that Attorney Weingast failed to properly advise him regarding a potential plea agreement with the state.   The petitioner and Attorney Weingast both testified that prior to trial the petitioner was offered a total effective sentence of 30 years suspended after 18 years in exchange for the petitioner's guilty plea to one or more of the charges.   The petitioner claims that he could not properly evaluate the plea because Attorney Weingast never went over the elements of the crimes charged or the petitioner's potential exposure if he were found guilty.

Attorney Weingast testified that he did explain the elements of the crimes to the defendant, told him his exposure, and recommended that he accept the proposed agreement.   According to Attorney Weingast, he went over the state's file with the petitioner and told him that he would face a much harsher sentence if convicted.

The court finds that Attorney Weingast's testimony was much more credible than the petitioner's.   The petitioner admitted that Attorney Weingast met with him on six different occasions.   It defies logic to believe that a criminal attorney with Attorney Weingast's years of experience would never during any of these meetings discuss the elements of the charges or the strength or weakness of the case as the petitioner claims.   This is particularly true given the nature of the charges and the evidence in this case.   The elements of the sexual assault charges are very straightforward-sexual intercourse and age.   The key evidence was also clear-the complaining witness's testimony and the petitioner's confession.   Consequently, the petitioner's testimony before this court that he never understood what he was charged with, neither during plea discussions nor at trial, is just not believable.   Nor is it reasonable to believe that Attorney Weingast would communicate the state's offer to the petitioner, which he admits, without discussing the details or the pros and cons of pleading guilty or going forward.   The petitioner has consequently failed to prove that Attorney Weingast failed to provide competent representation as it relates to the plea negotiations.³

2. Suppression of the Petitioner's Statement.   The petitioner alleges that Attorney Weingast failed to take sufficient steps to suppress the petitioner's incriminating statement of March 13, 2002.   As set forth above though, Attorney Weingast did move to suppress the statement.   Furthermore, the trial court conducted an evidentiary hearing on the motion.   At that hearing, Attorney Weingast raised through the testimony of the petitioner and his cross-examinations of the detectives the issues of sleep deprivation, alcohol consumption, the fact that the petitioner was never given a Miranda warning, and the fact that the petitioner felt compelled to go to the police station and did not feel he was free to leave.   After hearing all of the testimony, the trial court made a factual finding that the statement was voluntary and not the product of coercion, alcohol consumption, or sleep deprivation.

The petitioner claims that Attorney Weingast should have done more prior to and at that hearing.   First, he claims that Attorney Weingast failed to properly prepare him to testify.   As a result, his testimony at the suppression hearing was confused.   Second, he claims that Attorney Weingast should have put on expert witnesses as to the effects of alcohol consumption and sleep deprivation on decision making.   Finally, he claims that Attorney Weingast should have been more aware of the petitioner's limited ability to read and process information and should have brought these deficiencies to the attention of the trial court.

As to the first issue, the court is unclear how more preparation would have changed the underlying facts the trial court had to address.   All the petitioner had to do was tell the truth as to what he drank, how much or little sleep he had, and how that affected him.   Yet, the petitioner has been unable to tell a consistent story regarding these issues, particularly as to his consumption of alcohol.   At the suppression hearing, he testified that he drank some beers with friends after work on the morning of March 13, 2002 and then a few more beers at his mother's house before driving himself to the police station at 10:00 a.m. Before this court, the petitioner testified that after consuming beers with his friends after work, he went to his mother's house and consumed not beer, but a full twelve-inch bottle of 151 proof white rum and then a full twelve-inch bottle of wine.   He claims that he drank the rum and the wine between 7:30 a.m. and when he left for the police station.   Because he arrived at the police station in Manchester from his mother's house in Hartford at 10:00 a.m., this means that he would have consumed both bottles in approximately two hours.   Finally, at a bond hearing in the underlying criminal case the petitioner's attorney at the time, William Gerace, represented to the court that the petitioner's confession could be questioned because the petitioner “was so nervous about seeing the police that he took a quart of Hennessey with him in the car.”   Pet. Ex. 8, p. 10.   The court draws a reasonable inference that Attorney Gerace received this information from his client, the petitioner.

These are not minor inconsistencies that reflect a lapsing (or improving) memory.   One would not easily confuse drinking a few beers with a full bottle of 151 proof rum and a full bottle of wine.   Nor would one confuse drinking the rum and a bottle of wine in a house with drinking a quart of Hennessey while driving to the police station.   Instead, the court concludes that after the trial court ruled that a few beers would not render the petitioner's confession involuntary, the petitioner decided to concoct a more compelling story by significantly increasing the amount and type of alcohol he consumed before he confessed.   The court finds the petitioner's testimony not credible.   Furthermore, his repeated changes in testimony and information provided to the court further confirms to the court that the petitioner is just not a credible witness.

The absurdity of the petitioner's testimony is further confirmed by the fact that he drove himself to the police station, did not smell of alcohol, and, despite drinking 1.5 liters of alcohol in approximately two hours, and then two coffees, did not have to use the bathroom once in the almost three hours he was at the police station being interviewed.   The court rejects his claim that he was not properly prepared for the suppression hearing and further finds no prejudice as his testimony before this court was so incredible that even if given before the trial court it would not have been believed.

With respect to the expert witness issue, the petitioner failed to present any expert testimony to this court to show that such testimony was available to Attorney Weingast and would have been helpful to the petitioner's case.   The one article submitted by the petitioner (Pet.Ex. 6) is of little value because the court was provided with no connective testimony relating the general principles discussed in that article to the petitioner's situation.   Without such testimony it is impossible for the court to determine whether reasonably competent counsel would have retained an expert on sleep deprivation and whether the petitioner was prejudiced by the failure to do so.   The same is true with respect to an expert on the effects of alcohol consumption.⁴  Consequently, the petitioner can meet neither prong of the ineffective assistance standard.⁵

Finally, much of the evidence presented by the petitioner at trial in this proceeding focused on the petitioner's difficulties in reading and processing information.   Ms. Luddy was called exclusively on this point.   Much of the petitioner's testimony was directed to this issue, as were Petitioner Exhibits 1-4.   The petitioner claims that such evidence proves that he did not understand the statement presented to him by Detective Mora on March 13, 2002.   He argues that Attorney Weingast should have known of the petitioner's limitations and presented such evidence to the trial court at the suppression hearing.   The court rejects this argument for a number of reasons.

First, obviously the information available to Ms. Luddy as to the petitioner's performance in school since being incarcerated was not available to Attorney Weingast at the time of the suppression hearing.   What Attorney Weingast knew about the petitioner's limitations could have only come from sources in existence at that time, principally the petitioner.   The petitioner admitted that he never told Attorney Weingast that he had problems processing words.   He admitted that he never told Attorney Weingast that he had problems obtaining his GED. He argues that Attorney Weingast should have asked him these questions, but never explained why Attorney Weingast should question his ability to understand his statement when the petitioner never raised that issue.

Second, Detective Mora testified at the suppression hearing that he had in fact concluded that the petitioner could not read.   Consequently, Detective Mora read the typed statement to the petitioner, one paragraph at a time.   Detective Mora testified before the trial judge that the petitioner appeared to understand everything that was read to him and never expressed any confusion or lack of understanding.

Third, both Detective Mora and Detective Cohen testified that the statement was prepared based on what the petitioner said, unprompted by them.   While the petitioner might have problems processing what others might say, there is no evidence that he does not understand his own words.

Finally, as noted above, the matters the petitioner discussed with the detectives on March 13, 2002 were not complex issues that required a great deal of processing and analysis.   The statement typed up by Detective Mora and read to the petitioner said he had sexual intercourse with an 11-year-old girl.   That was the entire topic of conversation during the almost three hours he was talking to the detectives that day.   This court observed the petitioner when he testified and he clearly understood questions asked of him and was able to provide responsive answers.

The petitioner has failed to prove either that he did not understand what he was saying to the detectives because of his claimed deficiencies, or that Attorney Weingast had any reason to suspect that any such difficulties existed or that they would have provided fertile ground for argument at the motion to suppress hearing or at trial.   Consequently, the petitioner's claim is rejected.

3. Third-Party Culpability.   The petitioner claims that Attorney Weingast failed to investigate and present evidence of a defense of third-party culpability.   He claims that such a defense would have been particularly strong because the complaining witness had accused at least four other individuals of having sex with her before accusing the petitioner.   Attorney Weingast testified that he considered such a defense but did not pursue it because he did not think it would be worthwhile to do so.   The complaining witness immediately recanted her accusations regarding the janitors and teacher when asked about them by school officials.   Furthermore, both her mother and the petitioner said that the alleged sexual assaults could not have occurred at their home, as the complaining witness had told her friends, because a parent was always at home with the complaining witness.   Finally, the police determined that the alleged boyfriend, Louie, was completely made up.   Thus, there was no boyfriend for Attorney Weingast to investigate.   Based on the information available to him, Attorney Weingast's decision not to investigate a third-party culpability defense was reasonable.

In addition, the petitioner submitted no evidence that he was in anyway prejudiced by Attorney Weingast's failure to investigate third-party culpability or put on a witness in support of such a defense.   The petitioner presented no evidence to this court that such a defense would have been viable.   He called neither the teacher, the janitors, nor Louie.   He presented no evidence that had Attorney Weingast pursued such a defense further there is a reasonable probability that the outcome of the trial would have been different.

In fact, the record reflects that Attorney Weingast did all he could with the complaining witness's accusations of others.   He pointed out on cross-examination that she had made such accusations and then admitted that she lied about them, thereby calling her credibility into question.   He hit on this point again in closing arguments.   The petitioner has presented no evidence that Attorney Weingast could have or should have done more.

4. The Complaining Witness's Testimony.   The petitioner claims that Attorney Weingast failed to object sufficiently during the complaining witness's direct testimony and failed to competently cross-examine her.   When the court asked petitioner's counsel to specify the portions of the direct testimony to which he was referring, he did not.   Instead, he stated “the witness basically was led by the prosecution and I think the only way to decipher that is for your Honor to read the testimony of the complainant.”   10/25/10 Tr., p. 56.   He went on to say, “Your Honor, it was in a narrative form.”  Id.

It is not the court's responsibility to search the record for errors that might support the petitioner's case.   Such a procedure is also unfair to the respondent because it puts him in the position of not knowing what he needs to respond to.   If the petitioner and his counsel fail to properly identify the evidence to support their allegations, they cannot be heard to complain if the court rejects the claims on which those allegations are based.

Nevertheless, the court did review the complaining witness's testimony.   First, it clearly is not in the narrative form.   It is a series of short questions followed by short answers.   Second, while there are some leading questions, it can hardly be said that the direct examination is dominated by them.   In any event, no strategic decision is left more to the judgment of an attorney than when to raise an objection during a trial.   Such decisions must be made instantaneously taking into account not only whether there is a legal basis to object but whether doing so at that moment is a good idea.   Just because an attorney can object does not mean he should.   This is particularly true when the witness is a minor testifying on a sensitive subject like sexual assault.   A defense attorney may choose not to object to leading questions to avoid drawing further attention to a line of inquiry or to let the jury see that the witness cannot tell the story on her own.   The trial transcript reflects that Attorney Weingast's approach to the direct examination of the complaining witness was clearly reasonable.

With respect to cross-examination, the petitioner has identified one area which he claims should have been covered.   He claims that Attorney Weingast should have brought out that the complaining witness admitted during her forensic interview that she was the initiator of much of the sexual conduct with the petitioner.   He claims that such testimony would have undermined the complaining witness's credibility.

The court fails to see any benefit from pursuing such a line of inquiry.   First, this case did not involve an allegation of force by the petitioner.   The issue of who initiated the sexual conduct was irrelevant.   The court also sees no connection between the complaining witness initiating the sexual conduct and her credibility.   In fact, such testimony by her would have likely hurt the petitioner's case because it would have been consistent with the petitioner's statement to the police.   Testimony by the complaining witness that she initiated the conduct would have thus corroborated the petitioner's claim to the same effect, and his words would have corroborated those of the complaining witness.   One can clearly understand why Attorney Weingast would not want to do such a thing.

5. Cross-examination of Other Witnesses.   The petitioner also claims that Attorney Weingast failed to properly cross-examine the state's other witnesses.   When asked to identify the particular witnesses with which the petitioner took issue, petitioner's counsel only identified Lisa Murphy.   Ms. Murphy conducted the forensic interview of the complaining witness.   The petitioner claims that Attorney Weingast should have pointed out on cross-examination her lack of credentials, in particular that she had not gone to medical school, had very limited medical training, and had authored no treatises.   To be clear, the petitioner is not claiming that Attorney Weingast should have requested a Porter hearing and sought to prevent Ms. Murphy from testifying.   Instead, he claims that Attorney Weingast should have given the jury more reason to question her testimony.

This claim is without merit.   Ms. Murphy was not offered as an expert.   She testified solely as a constancy of accusation witness.   Furthermore, Attorney Weingast properly objected when the state sought to go into details of the complaining witness's statements to Ms. Murphy.   The objection was sustained and Ms. Murphy was limited to testifying to the general information to which a constancy witness may testify.   In addition, immediately after Ms. Murphy finished testifying the trial court instructed the jury on the very limited purpose for which it could consider Ms. Murphy's testimony.

Furthermore, an attack on Ms. Murphy based on her lack of formal training could have just as easily been counterproductive.   Ms. Murphy testified on direct examination that she had conducted approximately 420 forensic interviews of children.   She testified that she was a licensed family therapist.   She testified about the extensive training she had received to conduct such interviews.   Attacking her lack of medical training on cross-examination would have opened the door on re-direct for Ms. Murphy to reinforce and provide further details about her experience, training and background.   A reasonably competent trial counsel could wisely decide that opening such a door would not be a good idea.

The petitioner's theory of defense was that he did not commit the crimes charged, and that the complaining witness could not be believed given that she had falsely accused four other individuals before accusing the petitioner.   Thus, Attorney Weingast's approach of attempting to minimize Ms. Murphy's testimony by merely pointing out that anything she knew came from the complaining witness was a reasonable strategic decision.

6. Closing Arguments.   The petitioner claims that Attorney Weingast's performance during closing arguments was deficient in a number of respects.   In particular, he claims that Attorney Weingast should have objected to certain comments made by the state's attorney.   He also claims that Attorney Weingast did not argue points strenuously enough during his closing and that his closing argument was too short.

The petitioner claims that Attorney Weingast should have objected when the state's attorney said in her closing that the petitioner was rationalizing or minimizing his conduct.   The petitioner claims that such an argument was improper because police regularly use the tactic of minimization to get a defendant to confess.   The trial transcript reflects that the state's attorneys comments during closing were not improper.   In her initial comments to the jury she described the defendant's statement as, “it's minimization, its rationalizations, but, essentially, it's a confession, he admits that he's been having sex with her.”   Res. Ex. A, 3/27/2003 Tr., p.31. This statement does nothing more than tell the jury that however the defendant wants to characterize what happened, he admitted having sex with the complaining witness.   There is nothing objectionable about that.   Similarly, in her rebuttal, the state's attorney said, “He's rationalizing and justifying, he's shifting the blame, in his statement, to [the complaining witness], he's putting her as the sexual aggressor thinking that that's going to, perhaps, get him out of being responsible.   It doesn't get him out of being responsible.   There is no consent defense in this.”  Id., p. 40.   This argument merely reminded the jury that consent is not a defense they should consider.   Again, the court finds nothing inappropriate about this argument.⁶  Furthermore, the petitioner has shown no prejudice from these comments.   The elements of the crimes charged were simple and straightforward.   The jury had more than ample evidence to convict in the testimony of the complaining witness and the petitioner's own statement.   There is no reasonable probability that an objection to the state's attorney's comments, even if sustained, would have changed the outcome of the trial.

The petitioner's claims as to Attorney Weingast's closing require little discussion.   The petitioner has not identified anything of substance that Attorney Weingast failed to mention in his closing.   The petitioner's issues are purely ones of style.   He claims that Attorney Weingast was not forceful enough and did not talk long enough.   For example, the petitioner takes issue with how Attorney Weingast addressed the circumstances surrounding the petitioner's confession to the police.   When the court pointed out that Attorney Weingast had in fact addressed these issues on his cross-examinations of the detectives and again in closing, the petitioner's counsel argued that the “point really wasn't hammered home” and that Attorney Weingast “didn't pound the table enough.”   10/25/2011 Tr., p. 54.   As to the length of the closing, the petitioner claims that it only occupied six double-spaced pages of transcript.

Every trial attorney has a different approach to closing arguments.   And every case requires a different approach to such arguments.   The evidence does not establish that Attorney Weingast's approach was unreasonable in this case.   In fact, his closing succinctly and concisely summarized the defense's theory that the complaining witness was not worthy of belief and the circumstances surrounding the defendant's statement to the police should cause the jury to seriously question its accuracy and worth.   The petitioner has presented no evidence, and the court can imagine none, that merely talking in stronger terms or for a longer period of time would have been wise or would have made any difference.   The court also notes that the jurors were told by the trial court that the arguments of counsel are not evidence.   In this case, given the evidence the jury had, even if Attorney Weingast had not delivered a reasonably competent closing, which he did, the court would find no prejudice.

7. Other Issues.   The Amended Petition raises a number of other issues as to which the petitioner neither offered evidence nor argument at trial.   For example, the petitioner claims that trial counsel failed to file certain motions, did not adequately investigate the law, did not adequately present a defense, did not move for a new trial, and did not properly preserve issues for appeal.   The court has considered all of the petitioner's remaining claims and finds them to be without merit.   The petitioner has not met either prong of Strickland on any of his claims of ineffective assistance of counsel.

CONCLUSION

For all the foregoing reasons, the petition is DENIED.

BRIGHT, JUDGE

FOOTNOTES

FN1. During trial, petitioner's counsel conceded that although Count Two makes reference to errors by the trial court, the only errors actually claimed by the petitioner are those of trial counsel.   Consequently, the factual bases of both counts is identical..  FN1. During trial, petitioner's counsel conceded that although Count Two makes reference to errors by the trial court, the only errors actually claimed by the petitioner are those of trial counsel.   Consequently, the factual bases of both counts is identical.

FN2. Even if the court were to consider Count Two on the merits, the result would be no different.   As set forth below, the court finds that the petitioner has failed to prove any ineffective assistance of trial counsel in connection with Count One. That being the case, he necessarily has not proven the same alleged errors by trial counsel in connection with Count Two..  FN2. Even if the court were to consider Count Two on the merits, the result would be no different.   As set forth below, the court finds that the petitioner has failed to prove any ineffective assistance of trial counsel in connection with Count One. That being the case, he necessarily has not proven the same alleged errors by trial counsel in connection with Count Two.

FN3. The petitioner argues that Attorney Weingast should not be believed because he can point to no documentation to corroborate his claim that he advised the petitioner to accept the plea offer.   Attorney Weingast testified that he cannot locate the petitioner's file and that it must have been misplaced.   The petitioner asks the court to draw an inference that the file is not misplaced, but is being secreted by Attorney Weingast to cover-up his failure to properly advise the petitioner.   This is a very serious allegation to make against an attorney, particularly when there is no evidence to support it other than the fact that the file is missing.   The court will not draw such an inference.   Attorney Weingast testified credibly that he looked for the file and simply cannot find it.   The court therefore concludes that the file is lost and that nothing more nefarious has occurred..  FN3. The petitioner argues that Attorney Weingast should not be believed because he can point to no documentation to corroborate his claim that he advised the petitioner to accept the plea offer.   Attorney Weingast testified that he cannot locate the petitioner's file and that it must have been misplaced.   The petitioner asks the court to draw an inference that the file is not misplaced, but is being secreted by Attorney Weingast to cover-up his failure to properly advise the petitioner.   This is a very serious allegation to make against an attorney, particularly when there is no evidence to support it other than the fact that the file is missing.   The court will not draw such an inference.   Attorney Weingast testified credibly that he looked for the file and simply cannot find it.   The court therefore concludes that the file is lost and that nothing more nefarious has occurred.

FN4. In fact, given the petitioner's varied testimony as to what and how much he consumed, the court is unclear what such an expert would have testified to..  FN4. In fact, given the petitioner's varied testimony as to what and how much he consumed, the court is unclear what such an expert would have testified to.

FN5. The petitioner makes a similar claim regarding the trial itself, arguing that Attorney Weingast should have presented such experts to the jury.   For the same reasons set forth above, this claim is also rejected..  FN5. The petitioner makes a similar claim regarding the trial itself, arguing that Attorney Weingast should have presented such experts to the jury.   For the same reasons set forth above, this claim is also rejected.

FN6. The petitioner also claims that Attorney Weingast should have objected to a similar statement made by the state's attorney at sentencing.   The court rejects that claim because the trial court explicitly stated before imposing sentence, “While I do not share the state's attorney's characterization of his present attitude as one comparable to his confession, nonetheless-because I recognize that a confession is something that a police officer takes and, if there has to be minimization in the confession to get the confession, the police officer of course should and will encourage minimization.   So I think that argument does ring less powerfully.”   Res. Ex. A, 3/30/2003 Tr., pp. 10-11.   Consequently, even if Attorney Weingast should have objected to the state's attorney's comment, there clearly was no prejudice as the trial court rejected the inference the state's attorney wished the court to draw..  FN6. The petitioner also claims that Attorney Weingast should have objected to a similar statement made by the state's attorney at sentencing.   The court rejects that claim because the trial court explicitly stated before imposing sentence, “While I do not share the state's attorney's characterization of his present attitude as one comparable to his confession, nonetheless-because I recognize that a confession is something that a police officer takes and, if there has to be minimization in the confession to get the confession, the police officer of course should and will encourage minimization.   So I think that argument does ring less powerfully.”   Res. Ex. A, 3/30/2003 Tr., pp. 10-11.   Consequently, even if Attorney Weingast should have objected to the state's attorney's comment, there clearly was no prejudice as the trial court rejected the inference the state's attorney wished the court to draw.

Bright, William H., J.