Francisco Linarte v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

THE COURT:  The Court has reviewed the entirety of the evidence presented in the course of this four-day proceeding, and am prepared to rule.

The Court does make the factual findings as follows:  Mr. Francisco Linarte is in the custody of the Commissioner of Corrections.   Mr. Linarte was a defendant in the Judicial District of Stamford and Norwalk, at Stamford, where he was charged with five counts of sexual assault in the first degree, in violation of Connecticut General Statute, Section 53a–70(a)(2), and risk of injury to a minor in violation of Connecticut General Statute Section 53–21.

At all times referenced at herein, during the the trial of the case, Mr. Linarte was represented by Attorney Michael Sherman and his associates from Stamford, Connecticut.

The petitioner pleaded not guilty and proceeded to a trial before a jury.   Prior to trial, the petitioner, through his attorney, filed numerous motions, including a motion to suppress a purported confession, the substance of which is in evidence as Petitioner's 25.

In a hearing conducted before the Honorable Martin Nigro Judge, the Court denied the motion to suppress following the presentation of evidence.

The petitioner was tried before a jury on diverse dates in 2004.   And the Court had the benefit of all of the transcripts of the trial proceedings and various court dates, which proceedings commenced in February of 04', and then eventuated into trial before a jury in March of '04.

As a result of the trial, the petitioner was in in fact convicted of all charges.   And subsequently, on or about May 21, of 2004, the trial Judge, the Honorable Judge John Kavanewsky, Jr., sentenced the petitioner to total effective sentence of forty years state's prison, execution suspended after serving twenty years, ten years of which was a mandatory minimum, followed by thirty-five years of probation.

The petitioner thereafter appealed his convictions to the State of Connecticut Appellate Court in a reported decision, that's State v. Linarte, 107 Conn.App. 93, a 2008 decision.   The petitioner was unsuccessful on his appeal.   At the time, Mr. Linarte was represented by Attorney Deborah Stevenson, presently of Southbury, Connecticut.

With regards to this case, the facts were adequately summarized by the appellate court in a decision authored by Judge David Lavine after the three-judge panel found the appeal to have no merit.   The panel consisting of Judge Bishop, now Chief Judge, Judge Dipentima and Judge Lavine.

The Court, at page 95 of its decision, summarized the facts as follows.   Beginning in 1993, from the time they were two years old, twin sisters K and E spent three to four nights a week in the care of the defendant's mother.   And in the course of this reading, the Court will refer to Mr. Linarte interchangeably as the defendant, as referenced in the original appellate court opinion, and, as the petitioner.   The defendant's mother, who operated a daycare business in her home—in August 2002, when the girls were eleven, K disclosed to her mother that the defendant/petitioner had been sexually assaulting her from around the time she was five years old.   According to K it was her fear that the defendant would begin to abuse a five-year-old girl who recently started to attend the daycare.   That compelled her to divulge the abuse to her mother.

K's mother took her to Norwalk Hospital, where K told Officer Susan Holland of the Norwalk Police Department that the petitioner had sexually assaulted her for a period of years, most recently during the past two weeks.   E subsequently told Holland that the petitioner also had abused her over a period of years.   The girls were examined by a pediatric nurse at Yale New Haven Hospital.   Their ensuing interview at the Children's Connection in Norwalk was observed by Sergeant Kenneth Riley of the Norwalk Police Department and investigator Yezenia Molina of the Department of Children and Families.   From the interview, Riley, who had led the investigation, identified the petitioner as a suspect.

On August 30, 2002, Riley and police Officer Cartlon Giles drove to the petitioner's home and requested that he speak with them.   Giles, a youth officer, was familiar with the petitioner through his involvement with the DARE Program at the defendant's school.   The petitioner voluntarily accompanied the officers to the police station.   When Riley asked the defendant's mother if she wanted to accompany them, she indicated that she would drive herself to the police station later.

At the police station, the officers ascertained that the petitioner was an eighteen-year-old high school-graduate.   In keeping with the departmental procedure, Riley advised the defendant of his Miranda rights, provided him with a Miranda Waiver Form, listing his Miranda rights and asked him to read the form aloud.   When the defendant had difficulty reading the text back to Riley, Riley read to the petitioner, asking him if he understood each paragraph of the waiver form.   The petitioner said he understood and indicated as much by signing his initials after each paragraph.   The petitioner then signed the waiver form.

After Riley questioned the petitioner about his interaction with K and E, the petitioner admitted to having sexual contact with K and E over a period of years.

The petitioner confessed that two to three times per week, while his mother was sleeping, he would grind K from behind, he started rubbing, kissing and started placing his penis in her vagina and began placing his penis in her vagina.   He also stated that when I was about thirteen years old, I used to rub up against K with my clothes on.   I probably put my penis in E's butt, but I am not sure.   About a month ago was the last time K placed my penis inside her vagina.   Joining the interview between Riley and the defendant, Molina heard the petitioner say that he had sexual intercourse with both girls.   Riley typed and printed the petitioner's confession, after which Giles read it back to the petitioner.   Identifying the statement as his own, the petitioner signed it.   Riley would later testify that the petitioner appeared relieved after telling his story;  the petitioner was arrested in November 2002.

At trial the—in March 2004, K testified that during June, July, and August 2002, the petitioner entered the room where she slept at night, got on her bed, removed her underwear and penetrated her vagina with his penis.   E testified that in July and August of 2002, the defendant touched and penetrated her vagina and her anus with his hands and penis.   K testified that the assaults happened approximately 75 percent of the time she stayed at the daycare and that she could not remember anytime during which the defendant was not sexually assaulting her.   E testified that the sexual assaults happened pretty much all the time she was at the daycare.

In diametric contradiction to his confession, the defendant/petitioner denied at trial that he had ever touched K or E sexually.   He testified that he had confessed because Riley and Giles told him he could not leave the interview at the police station until he admitted he had molested the girls.

On March 16, 2004, the jury found the defendant guilty, as I indicated, and sentence was imposed in accordance with the Court's prior remarks.

Here, the petitioner, in a habeas corpus proceeding, stands on a different footing than a defendant in a criminal action.   A defendant in a criminal case is presumed innocence.   Here the petitioner is not cloaked with that presumption of innocence, but been having found guilty on all counts before a jury.

The petitioner by way of an amended petition dated May 30, of 2009, makes a number of claims in his petition for writ of habeas corpus.   He has set forth six claims,—strike that—five claims, which I will address, not necessarily in the order in which they were raised.

Firstly, with respect to count five, it is claimed that the petitioner's conviction should be set aside and he ought to be granted a new trial for what is termed cumulative errors on the part of his attorneys, and also conduct of the Court, Judge Kavanewsky and the State's Attorney Colangelo, all of the which he claims should, based upon deprivation of his rights guaranteed him under the Connecticut Constitution and the United States Constitution, ought to be granted a new trial.   This Court views this particular claim as a catchall-type of claim not recognized by our courts, and thus finds it to be unproven and nonspecific.

With regard to the other specific claims, the Court will address those claims.   But with respect to count five, under the Court's language in State v. Tillman, this claim is not recognized under our jurisprudence, the catchall-cumulative-error type of claim.

With regard to the fourth count, it is claimed that the petitioner ought to be granted a new trial because the trial Court abused its discretion and exhibited inherit prejudice toward the petitioner.   Again, the petitioner claims violation of his rights vis-a-vis the Connecticut Constitution and the United States Constitution.   With respect to this allegation, the record is abundantly clear that there was a motion to suppress evidence before the Honorable Judge Martin Nigro, and there was a trial before the Honorable Judge Kavenewsky.   With regard to the motion to suppress, the transcript of which is in evidence, and the substance of which has been testified about, the petitioner has not proven any inherent prejudice so-called on the part of Judge Nigro.   On the contrary, it was credibly testified to by Mr. Sherman.   That Mr. Sherman was acquainted with Judge Nigro, having been an Assistant State's Attorney under his supervision, and actually worked for Judge Nigro, I believe, in his former capacity as a state's attorney.   What's more, Mr. Sherman, an attorney of many years experience, was also a former public defender and a private attorney with many years of experience, representing individuals accused of serious and minor misdemeanor and felony crimes.   Attorney Sherman had substantial trial experience with the Judge and did not testify in any way that he felt Judge Nigro was biased or prejudiced, or in any way did anything that remotely resembled inherit prejudice or misconduct by that Court.

With respect to Judge Kavenewsky, the record is bereft of any evidence, let alone credible evidence, that the conduct of Judge Kavenewsky in anyway, exhibited inherent prejudice, unfairness, or misconduct by Judge Kavenewsky, which in some way prejudiced Mr. Linarte.   On the contrary, it appears that the record in evidence, and testimony in this case, in this proceeding, abundantly establishes a fair and full trial, with full opportunity for the petitioner, through his several attorneys, to present a defense, which the petitioner elected to do, and also, through his attorneys, conduct vigorous and aggressive cross-examinations of each of the state's witnesses, including conducting adversarial hearings, not the least of which was the motion to suppress, and the motion to permit out-of-court-video taped testimony of the female victims outside the presence of the jury in the so-called Jarzbek hearing.   Attorney Sherman, in fact, testified with respect to the Jarzbek proceeding, that he certainly did not feel a detriment by not examining the female complaining witnesses, in open court, in front of a jury, where he felt that there would be sympathy for the females, and in his terms nothing was lost by virtue of the proceeding via the video.   But it is clear that with respect to the entirety of the trial, there is no misconduct of the Court which, in anyway, supports the petitioner's allegations with regard to count four, and for those reasons, the allegations fail.

With regard to the third count, which alleges prosecutorial misconduct;  it is alleged that the state's attorney, Richard Colangelo, a Senior State's Attorney, committed prosecutorial misconduct, or as is termed in more recent case law, prosecutorial impropriety, in that the petitioner claims he was impaired when the state's attorney refused to make available for examination, or copying evidence prior to trial, failed to provide statements which may have been exculpatory, made unjustified statements and personal opinions to the jury, prejudicial to the petitioner and his trial, and to, presumably, the orderly administration of justice.   Here, again, the record indicates that Mr. Sherman was experienced and familiar with Assistant State's Attorney Colangelo.   And, in all candor, there is nothing to rebut the credible evidence presented by Mr. Sherman that Mr. Colangelo, in the conduct of this case, did not, in Mr. Sherman's words, play hide the ball.   There was an open-file policy in effect at the particular court in which Mr. Linarte was tried.   Mr. Sherman was quite familiar and experienced in that court, and although aggressive, Mr. Sherman indicated that Mr. Colangelo in no way did anything improper.  “Mr. Colangelo is an aggressive prosecutor, he plays by the rules, he would not have hid the ball with me I don't believe,” said Mr. Sherman.   It is notable that Sherman had practiced since 1976.   His practice consisted of 99 percent criminal work.   He attended the University of Connecticut, graduated in 1968.   He graduated from law school from the University of Connecticut, in 1971.   As noted, he was a public defender in Stamford and then an assistant prosecuting attorney, and then he engaged in criminal defense work for a number of years, in partnership, apparently, with other individuals, including at least one of his own children, who was present and is accounted for in the transcripts in evidence.

With regard to Colangelo, there is no evidence in the record, let alone credible evidence, to support the claim of prosecutorial misconduct, and for that reason this particular count three fails.

With regard to the other two counts:  Count one alleges ineffective assistance of his trial counsel.   Counsel are guided of course by the seminal cases, firstly of Strickland v. Washington, the United States Supreme Court Decision that provides in order for the petitioner to prevail on such a claim, he must prove (1) deficient performance and (2) prejudice.   Those sentiments were echoed by our Connecticut Supreme Court in the Ledbetter v Commissioner of Corrections.   If the Court is to find an absence of either element of proof, the petition fails.   The case is postured with a presumption of trial adequacy, counsel is presumed to have made all reasonable judgments.   It is the petitioner's burden in this civil action to prove otherwise.   Here, the petitioner alleges, specifically in paragraph six, that his prior trial attorney, Mr. Sherman, was deficient in a number of ways and the Court will address each of these allegations.   6–A, alleges that trial counsel failed to subpoena, or otherwise to have witnesses available to testify that would have testified favorably for the petitioner.   With regard to this claim, the record is insufficient to conclude that Mr. Sherman failed to call a witness, if called, would have in some way affected the outcome favorably for Mr. Linarte.   The respondent's counsel is correct in knowing our established law that the failure to call a particular witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense;  That is from State v. Talton, 197 Conn. 280 (1985), and Johnson v. Commissioner of Correction, a 2008 decision of our Connecticut Supreme Court.   Here it is notable that Mr. Sherman testified that he met frequently with his client Mr. Linarte, all members of Mr. Linarte's family, his mother and other members of the family, and it was Mr. Linarte's defense from the outset that he was innocent of these offenses, he did not do the crimes with which he was alleged to have committed, and that he did not provide the confession voluntarily, knowingly and did not waive his rights.   That was the purported defense that he sought to pursue.   And here, again, given the defense which was chosen—and that was a matter of strategy—he obtained all records, reports, statements, evidence against his client, he reviewed that, reviewed that with his client, he developed a strategy with Mr. Linarte who actively participated along with his mother and family members in discussion of various aspects of the defense.   This Court will make a finding that notwithstanding the fact that Mr. Linarte had availed himself of special-need services while in the public school system, predominantly I believe in Norwalk, he, at the age of eighteen, had graduated high school, he was essentially an average student.   In some instances, below average, nonetheless he was able to graduate, receive a diploma.   He was able to testify today, understand questions of counsel, indeed brief questioning by the Court, undergo cross-examination by the state's attorney, and is apparent from the record in evidence, both the testimony from the motion to suppress, the testimony at trial, he was able to be responsive to questions asked by his own Attorney, Mr. Sherman, as well as cross-examination by Mr. Colongelo.   It is clear that although the petitioner may have had some difficulties in the course of his education experience, including some degree of verbal and auditory processing limitation, it is clear also that the petitioner at the time he was represented by Mr. Sherman, was oriented in place, time and circumstance, and had acumen and intellect, enough to comprehend the nature of the charges against him and the chosen strategy of his defense.   With regard to the allegation in 6–A, it is unproven.   Counsel—or rather the Court—cannot speculate as to the testimony of any particular witness that was not presented.   Here, the Court did hear testimony from a number of witnesses, including Dr. Mantell, of course Dr. Novelly, who was presented at trial, the petitioner's sister, Ms. Reese, who testified today, the petitioner's brother, I believe Daniel Linarte.   The Court cannot conclude that the substance of any of these witnesses' testimony, if presented, would likely have changed the outcome.   With regard to the decision to call witnesses, that is a tactical decision and certainly an attorney of Mr. Sherman's years was within reason, able to make those judgments.   A trial in habeas is not an opportunity to retry the case;  it's not an opportunity to second guess the trial-strategy of counsel.   Our Appellate Court so held, in the case of Toccaline v. Commissioner of Correction, it was well established that a habeas court cannot, in hindsight, second guess trial-strategy, 80 Conn.App. 792, and this Court will not engage in this type of analysis.

With regard to the allegation of 6–B, it is alleged that trial counsel did not adequately investigate the evidence and or the state witnesses prior to trial.   Mr. Sherman testified credibly that he did employ the services of his longtime acquaintance and investigator, Vito Colucci.   And he sent Mr. Colucci on a mission, among other things, to discover favorable evidence, including investigating all of the state's witnesses.   It appears from the record that Mr. Sherman did a cogent and crisp and methodical cross-examination of each of the state's witnesses.   It is clear also that in doing so, Mr. Sherman recognized that certain of the evidence presented by the state, including the testimony from the nurse, Murphy, that any physical examination of the female subjects was unremarkable;  no indication of physical trauma, no evidence of broken hymen.   All of that was significant and that it actually did favor the defense more than it favored the prosecution.   There was no need to call a countervailing medical or other expert witness.   In plain speak, when the state's case is good for the defense, the defense needn't inquire further.   And so sometimes an attorney might choose to not ask questions or to certainly tailor the questioning accordingly if the evidence is not harmful, or even more to the point, is favorable to the accused.

There is no evidence before this Court to suggest that had Mr. Sherman, or associates in his camp, done additional investigation, that investigation would have borne fruit that would have benefited the petitioner.   It is incumbent that the petitioner shows what benefit additional investigation would have revealed, and that is from the case of Holly versus Commissioner of Correction, 62 Conn.App. 170 (2001).   Based upon the evidence presented here, the petitioner in his allegation of 6–B does not prevail.

6–C alleges that trial counsel failed to offer into evidence, at the motion to suppress hearing before Judge Nigro, any expert testimony, medical testimony or documentation of the petitioner's history of mental impairment and or disabilities.   The Court has to consider the testimony of Mr. Sherman in this regard, along with all of the other evidence presented.   But with respect to Mr. Sherman, Mr. Sherman had a—what I will call a “peculiar acquaintance” with the temperament and mindset of Judge Nigro, having been his former subordinate.   I can indicate anecdotally that I have been in that very same situation having been a former state's attorney under the former employ of my adversary, a state's attorney in the trial of the case.   One gets a unique perspective and knows the proclivities and thought processes of a particular magistrate.   Here, given Sherman's knowledge, he did not feel that Nigro would be persuaded by a medical witness, he so specifically testified, “I don't think Judge Nigro would have been persuaded by a doctor talking about cognitive abilities,” said Sherman.   Sherman essentially stated at the motion to suppress that he had made a tactical decision that he could bring out any aspect of Mr. Linarte's cognitive impairment through Mr. Linarte's mother, Joanne, and through Mr. Linarte;  it would be through these lay witnesses.   Sherman made the determination that the Judge would be apprised of Mr. Linarte's vocational, educational history and some limitation.  “We had a young man with cognitive abilities;  I felt that bringing the mother and son in was our best shot.   We put him on the stand.   In dealing with a confession, it was an uphill battle.   I did use Novelly in front of the jury, it would have been helpful to keep the statement suppressed, however;  it's rare.   I am asking the jury to disbelieve that Mr. Linarte confessed to the crime.   Novelly was there to testify that he, Mr. Linarte, would sign anything just to appease the officer.   It wasn't necessary to have two bites.”   That was the testimony of Mr. Sherman, and that was credible, seasoned, reasoned testimony by the trial attorney on his thought process in the motion to suppress.   This Court will make a finding that Mr. Sherman did not present a medical expert, qua expert.   However, the claim that Sherman did not present evidence about the medical limitations is unproven.   On the contrary, the transcript in evidence, regarding the testimony of both Ms. Joanne Linarte and Francisco Linarte reflect that evidence was presented on this issue, and it was a tactical reason that Mr. Sherman wanted to keep Novelly in his quiver, so-to-speak, even though the consultation had occurred with Novelly, according to his testimony in June of 2003, it was a strategic decision to keep closeted the neuropsychologist/psychologist from the Norwalk Hospital, who, as the record reflects, was former director of neuropsychology at Yale and is now in Branford.   Mr. Sherman appreciated it was an uphill battle, so-called, to win the issue on the motion to suppress.   Now with regard to this, the Court heard much testimony over days by the petitioner's witness, Dr. Mantell.   Suffice to say, that without question, Dr. Mantell has a lot of credentials in the area of clinical psychology, has testified in matters in the juvenile courts and in the superior court and elsewhere, has given presentations to a number of groups, including the judiciary, court officials, John Jay College and other locations.   He has testified in Connecticut and Vermont.   He is well published in many aspects of forensic psychology.   However, the Court does not accredit Dr. Mantell's testimony insofar as his opinions regarding police tactics and whether or not the defense or prosecution should have accessed the cots on which these females lay.   The later two aspects, in my opinion, illustrate the over extent to which an expert so-called will go in rendering an opinion.   In my view Dr. Mantell is the essence of a paid medical witness.   It is rare that this Court would react this viscerally to any witness professional being paid a fee for services.   That would be normal;  that is customary.   However, when the court heard that Dr. Mantell was actually paid, or would seek payment of thirteen thousand five hundred dollars, which exceeds a cost of a distressed condominium sale of a friend of mine, last week in Sarasota Florida, for twelve thousand dollars;  that, in this Court's view, shocks the conscience of the Court, and the Court must wonder, indeed, about the weight to be given to Dr. Mantell.   In this Court's view, Dr. Mantell displayed a bias against police officers with respect to the conduct of the methodology of interviews.   There is absolutely nothing in the record, at the trial level, at the motion to suppress, in the course of the trial itself, or this habeas proceeding, which, in this Court's view, is credible to suggest the police, in interviewing Mr. Linarte, and preparing the statement, which is evidence as Petitioner's 25, overstepped their bounds, committed a violation of law, did something unfair, untoward in interviewing Mr. Linarte and taking his statement.   What has been lost, and not referenced in the course of this proceeding, is that the statement—or a statement was witnessed by a Ms. Molina, employed by the Department of Children and Families.   This fact has not been lost to this Court.   It was discussed in part during the testimony of Mr. Sherman.   It was highly unusual to have a DCF worker present, who then counter-signed a statement.   It is serendipitous beyond description that there be a third party, some might say interested, this court views that person as disinterested even though the individual might have been in her capacity to monitor Ms. Linarte in her charge as the head of the daycare center.   That, notwithstanding, one would stretch the bounds of reason to think that under these circumstances there was a predicate for coercion as that advanced by Dr. Mantell;  and for those reasons the Court is not crediting Dr. Mantell's lengthy testimony.

With regard to Dr. Novelly, it was clear that Dr. Novelly was presented before the jury.   And Dr. Novelly, again, comes with credentials and conducted extensive interviews with Mr. Linarte, over, I believe, four or five extended sessions, conducting a series of psychological examinations, the details of which I needn't get into.   Suffice to say at trial, counsel, Linarte and Novelly attempted to advance the position that the confession was not valid and should be disregarded.   One might infer, and it is pure speculation, that the jury did not accredit Dr. Novelly.   The Court is no less persuaded that had Novelly been presented before Judge Nigro at the motion to suppress, the outcome would have been any different.

As far as documentation of the petitioner's history of mental impairment and or disabilities, the Court reviewed the entirety of Petitioner's 28, the petitioner's records from his entire time in school.   What it reflects is a number of PPT Reports and assessments and clinical updates by members of the special education team for Mr. Linarte.   It reflects, with consistency, frankly, a young man with a good attitude, a pleasant demeanor, a pleasant smile, who did not perform to his capacity, but indeed had difficulty with listening and hearing things and verbalizing things, and hence the auditory and verbal limitation and should be accorded accommodation in that regard.   To conclude that Mr. Linarte, at his mature age of seventeen, was of such a mental state to be overborne and to be dispossessed of his will in fabricating a false confession, really, in this court's view, is not reasonable.   So again, even if the entirety of this evidence was presented at the motion to suppress, it would not persuade me as a Judge.   I don't think it would affected Judge Nigro differently.   And the same could be said if a school official were brought in or other individuals who might have counseled Mr. Linarte.   At the end of the day, it would be for the Court to decide whether or not to essentially determine that the police were lying or indeed that Mr. Linarte had a stake in the outcome, and to choose to not accredit Mr. Linarte's testimony.   The Court, in all respect, in hearing Mr. Linarte's testimony today, understands that Mr. Linarte testified consistent with the position he has maintained throughout the entirety of the investigation, prosecution, conviction, appeal and now today, and cannot accredit Mr. Linarte's testimony with regard to the methodology of the confession.   For all of those foregoing reasons, and to recognize that it was a tactical decision by Mr. Sherman to not call a medical expert, 6–C is unproven.

6–D alleges that trial counsel failed to retain an expert witness or offer into evidence testimony as to the appropriate police policies and procedures in obtaining a confession from the petitioner during a motion to suppress hearing before Judge Nigro.   This is an expansion on the previous claim, and I might now, again, refer to the testimony of Mr. Sherman at trial.   He used the term in very colloquial speak, that he was familiar with these experts, so-called, and he described them as “voodoo experts.”   And, my notes were very careful in this regard.   Dr. Phil, before he was Dr. Phil, some of you might not realize he was a jury consultant.   And there is a lot of individuals who use their PHD in psychology to testify about psychology, police procedures, individual's reactions to certain techniques, Sherman appreciated that Judge Nigro, given his background, would probably not be persuaded, and it was reasonable for Sherman to choose to not retain such an expert so-called, and, again, to rely upon the strategy of Ms. Linarte and Francisco Linarte, speaking in front of the Court and presenting the evidence in that fashion.   And for all of those reasons 6–D is unproven.

6–E alleges that trial counsel failed to retain expert witnesses for the defense to counter the state's evidence and or testimony of its witnesses at trial.   I suppose this encompasses many potential claims, not the least of which is the Dr. Mantell testimony about the reliability of the complaints, perhaps criticizing certain aspects of corroboration or things such as the cots, the cots weren't weighed, how can you prove him guilty if you look at the cot and you look at the individual Mr. Linarte, who may have been in excess of two hundred pounds, the female subjects might have been about a hundred, a hundred fifteen pounds, which seems like a lot of weight for a twelve, thirteen year old in my view.   But in any event, that type of analysis, I don't think it was incumbent of Mr. Sherman to have called an expert necessarily.   The issue of experts, for reasons that you can already infer, it is a very sticky issue.   I am of the belief, have always been of the belief, of having faith in juries.   The jury system is something that is guaranteed via the Connecticut Constitution.   We are one of only two states which provides for individual voir dire.   I have a lot of experience over twenty-three years trying cases before juries.   Lawyers, as in this case, were permitted to ask questions to get a fair and neutral jury.   In my view, the use of experts is overused and it insults the intelligence of the lay person to suggest they're not able to figure it out, but for a MA, a PHD or somebody with an advanced degree to testify and tell them how they should think.   In my view, that is a tactical decision, and frankly I concur with the strategy chosen by Sherman, who realizes that it's a jury of lay people, who some of you may not realize, anecdotally, has an average intelligence of an eleventh grader;  that's what studies have shown, and so to suggest that calling in more experts might have changed the outcome, it is unpersuasive to this Court with regard to this allegation.   Sherman testified credibly, he thought it peculiar that the confession, so-called, resulted after only three minutes while Mr. Linarte was in detention.   Sherman sought to cross-examine the police officers on this, sought to bring out that the mother was outside wanting to see the son.   He had the right, as the attorney, but more significantly it was Mr. Linarte's right to have an attorney make those judgments.   It was a relatively short time.   There was familiarity to some degree between the police and Mr. Linarte, given some experience with the DARE Program.   And, again, to say that standard of care requires the calling of an expert, is to adopt a standard that this Court is not willing to go to.   6–D is unproven.

With regard to 6–E,—I'm not sure—trial counsel failed to obtain expert witnesses for the defense to counter the state's evidence;  I think the court has already addressed that.   Let me review for a moment.  (Pause).

Here the evidence is clear that Mr. Sherman retained Dr. Novelly.   Dr. Novelly was a credentialed psychologist and neuropsychologist.   He conducted extensive testing.   His chosen strategy was to present Novelly, albeit without a report at the time of trial.   He did so, so he would not have a report which he would have to disclose to the prosecution.   As I commented during trial, unless you are in federal court, where it is required that you submit a report by an expert,—in my view it would questionable.   And I recall being a supervisory attorney admonishing young associates for having the temerity to put anything in writing to an expert, let alone get a report, which might be discoverable.   It is desirable as a litigation tactic for an experienced trial attorney to not have a paper trail.   And in preparing Novelly, Sherman was aware of his opinions.   It was testified to credibly that there was a brief phone call with Novelly before presenting him, that an associate and Novelly met with the doctor prior to Sherman making inquiry;  this is how team litigation occurs.   One attorney isn't expected to do everything.   You have associates, they assist you, they participate in the defense team;  that is the definition of a competent practice.   Here the strategy was to try to convince the jury that the confession should be disregarded.   As I said earlier, apparently the jury disagreed, but Sherman made the decision to retain Novelly.   And interestingly, in very candid speak, in direct examination, asked Novelly, “you're here, let's be candid, you are here as our employee, aren't you, doctor?”   And to some puzzlement, to this Judge, Novelly testified that he was referred to Mr. Linarte by a Dr. Damoso from Norwalk Hospital.   That is in great contradistinction from his repeated statement today, that Mr. Linarte came referred by his mother, Joanne.   So it is a little unclear how Linarte—Mr.   Linarte got to Novelly.   But what is clear is that Mr. Novelly—Dr.   Novelly—was a litigation-consultant.   Indeed when asked questions about did you see him for treatment, by Sherman, I think Novelly was a little uncomfortable when I read the transcript, because he really didn't see Mr. Linarte for treatment, but it was in connection with pending litigation.   And that's why Dr. Novelly is paid a reasonable fee for his review and testimonial services.   Incidentally, the Court attaches no weight to the fact that Dr. Novelly charged three thousand dollars, other than perhaps he's under billing in light of Dr. Mantell's apparent standard.

With regard to 6–F,—and I do apologize for going beyond the 5 o'clock hour—it is alleged that trial counsel didn't adequately prepare the petitioner's defense, nor subpoena important defense witnesses for trial.   The record is clear, there was vigorous cross-examination of all of the state's witnesses, there was a clear cogent defense of innocence which was pursued, and indeed the petitioner put on an affirmative defense, which was not his obligation.   There was a motion for judgment of acquittal.   There was a motion to suppress, there was a Jarzbek hearing.   With regard to the Jarzbek hearing, I'll just comment—because I haven't commented to a great extent—with regard to this proceeding, one has to accredit the testimony of Sherman, that he was not disappointed in losing that motion.   That he thought that the female subjects, if presented in front of a jury would be quite sympathetic, and that he saw no disadvantage by proceeding in that fashion.   And, again, he did not want to tip his hand that he retained Novelly, he wanted to save him for trial, didn't produce a report to preserve the element of surprise because he is an experienced knowing trial attorney.   And with regard to the actual Jarzbek proceeding and examination;  Mr. Sherman walked a fine line in doing his job, aggressively cross-examining these young-female subjects, but at the same time being careful not to offend one's sense of reasonableness even knowing Mr. Linarte had that right to have a lawyer cross-examine aggressively witnesses who were accusing him of the conduct that was described and articulated in the Appellate Court decision.   There was no deficiency by Sherman in the conduct of the Jarzbek hearing.   This Court makes a specific finding in that regard for the failure of to call any medical witness or to do an examination differently than that which the record clearly shows.

With regard to 6–G,—let me go back to 6–F:  Again, Mr. Sherman availed himself of the open-file policy, he hired the investigator Colucci, he had the opportunity to view all evidence.   This Court cannot find deficiency because Mr. Sherman admittedly did not go to the Linarte residence, did not photograph the Linarte household, did not take the cots out and have them examined forensically, for some purpose.   He felt it was not necessary.   Mr. Sherman appreciated the reality that it would not be experts that would carry the day, it would be the credibility of the complainants versus the credibility of the accused individual, and that is what these cases often come down to.

As far as the absence of any forensic analysis, body fluids and the like on the cot, or anything else, again, although we live in a post-O.J. Simpson world, the reality is, where you have such horrific crimes as described, the jury has to ask the question, why would individuals lie?   Why would individuals knowingly come into court and make a false accusation?   And that's the rub of any sexual-assault case.   And so the lawyer's job is to try plant the seed of reasonable doubt.

With regard to the claim here, that counsel ought to have brought up the potential knowledge of an insurance policy, this Court finds that to be inconsequential.   The Court heard the testimony of Ms. Reese—to some extent it is hearsay—and surmise whether the two young females, K. H., E. H., actually heard the comment.   And there was discussion about a million-dollar liability policy.   It would be a sophisticated thirteen-year old indeed that would embark upon a false accusation trial, coming into court, and through a Jarzbek proceeding, testifying, knowing the consequences of a trial all for potential financial gain;  that was just—again, the court cannot find any deficiency on Sherman's part for not bringing up such an issue, nor does the court find deficiency in not talking to Ms. Reese, the sister of Mr. Linarte, or indeed bringing out any aspect of testimony brought out Mr. Daniel Linarte.

Today, it was testified to, beyond the scope of the testimony at the original trial and suppression, about different circumstances in which Mr. Francisco Linarte found himself with the subjects, watching fireworks, out socially.   I think it clear to infer that if it came out that the individual, Mr. Linarte, was in all these different settings outside of the daycare environment;  that is double-edge sword, suffice to say, and it actually underscores a further degree of contact which would have been incriminating.   So, again, when viewed in the vacuum perhaps it might show something of favor to Mr. Linarte, but on the other hand, this Court, and former attorney, well appreciates the downside of going into that kind of evidence.   And so the court cannot conclude any deficiency on Mr. Sherman's part in that regard.

The court cannot speculate as to any other witness that may have been presented that would have likely have changed the outcome for the reasons and cases already cited.   This Court concludes that the allegation in 6–G is unproven.   That trial counsel did not investigate, acquire or examine the state's evidence prior to the jury trial.   Mr. Sherman addressed having available all of the evidence, the statements, reports.   There is no credible evidence presented that had he investigated this case differently, there would likely have been some different outcome.   There is no deficiency, no prejudice with regard to G. Also, Mr. Sherman explored the aspects of the schooling of Mr. Linarte and all the accommodations, vis-a-vis the testimony of Dr. Novelly that was presented at trial.

6–H alleges that trial counsel failed to offer into evidence any expert testimony, medical testimony, or documentation of the petitioner's history of mental impairment and or disabilities;  the Court has already addressed that with regard to its prior comments.   There is insufficient proof on this claim.   Dr. Novelly testified at length about any impairment or difficulties and the jury was unpersuaded.   What's important to note, this Court will not take the position of viewing Dr. Mantell's testimony and somehow conclude that had Mantell and Novelly been presented, there would have been a different outcome.   The fact was that a doctor was presented before the jury—and the petitioner can assemble six doctors, but if petitioner's counsel chose one, that is a strategic decision by the trial attorney.   The essence of the claim was advanced and one might argue multiple doctors would create a claim of cumulativeness, which might limit the ability to present multiple expert witnesses in that regard.   6–G is unproven.

6–H is unproven.   There is nothing in the documentation which the court reviewed, which included the entirety of the school records.   And I did review, with more particular eye, to the records of the 11th and 12th grade that would suggest that Mr. Linarte was not able to knowingly and voluntarily appreciate his Miranda rights, the right to remain silent and the consequences of waiving that right.   The Court did not elucidate the holding of Miranda v. Arizona, but that was essentially the holding;  you have the right to remain silent and anything you say can and will be used against you.   At that point, Mr. Linarte signed off on the so-called waiver.   There is nothing in the records to suggest that Mr. Linarte was unable to appreciate the consequences of his actions.

With regard to 6–J:  it is alleged that trial counsel failed to cross-examine the state's witnesses and impeach them before the jury.   There is no credible evidence presented that had counsel cross-examined the witnesses differently, the petitioner would have necessarily been in a better position;  that claim is unproven.   There is no deficiency shown on the part of the trial attorney.

With regard to K;  it is alleged trial-counsel's representation was not reasonably competent.   This Court makes a finding that Mr. Sherman's representation was not deficient.   Indeed the team of three lawyer's representation was aggressive and competent and methodical with obvious reflection of experience and insight into the issue of when and when not to call an expert witness and when to attempt to rely upon the testimony of the mother and Mr. Linarte, and to put Mr. Linarte before the Judge and before the jury to tell his side of what occurred.   I will remark;  I am surprised that more lawyers don't do that.   I actually concur with Mr. Sherman's philosophy, of which I think he expressed, I would often present my clients in front of the jury in wanting them to look in the eyes of every one of them, and that is a cogent strategy because the jury wants to listen and hear the defendant, even though there is a presumption of innocence and a right not to speak;  a Fifth Amendment Right not to self-incriminate.   It is human nature.   Every juror is questioned on it, and the learned and capable lawyer is merely giving the jury what he wants at that point or what they want, really, and that is to hear from—from the defendant, and that decision was made here.   The Court can't second guess the trial strategy.   Based upon all of the foregoing, the Court finds insufficient evidence of deficient performance on the part of Mr. Sherman, insufficient evidence of prejudice.   And for those reasons count one fails.

With respect to count two, it is alleged that Attorney Debra Stevenson was ineffective for failing to investigate documents and trial transcripts and to raise appropriate issues or failing to preserve issues.   This Court heard the testimony of Attorney Stevenson at the time she accepted representation as a special public defender.   She attended the University of Connecticut, having graduated with a degree in history.   She was a lawyer having obtained her law degree from Quinnipiac University in 1999.   She had been doing appellate work for approximately six years, some fifty appeals, mostly criminal.   She reviewed the record here for purposes of raising claims which she thought had merit.   She reviewed the transcript and the record and she developed a number of issues which she believed had merit.   In evidence is the appellate court decision in the matter of State v. Linarte.   Counsel raised no less than five issues, including the denial of the motion to suppress the confession, the claimed impropriety of a denial of a motion of disclosure of medical and psychiatric records of K and E, the trial court's ruling denying the defendant's motion to preclude certain prior misconduct evidence of the defendant, and also raising a claim the trial court improperly denied the defendant's request to question M, an investigator with the department of families—Children and Families, about potentially exculpatory information.

And lastly, Attorney Stevenson challenged the Court's denial of the motions for judgment of acquittal and a motion for new trial.   With regard to this case, this Court makes a finding that there was sufficient evidence to uphold the findings of guilt.   The Court viewed with great interest the videotape testimony of the victims, the victims convey themselves as clear, clear headed, ability to recall was intact, the ability to answer questions, not only on direct, but under rigorous cross-examination, and it is clear there was frankly overwhelming evidence of guilt especially in light of the purported confession;  Petitioner's 25.   There is no evidence presented today, and the Court is mindful on the appellate issue, under the case of Small v Commissioner of Corrections, 286 Conn. 707 (2008).   To satisfy the prejudice prong, when claiming ineffective assistance of appellate counsel, the petitioner must show a reasonable probability that but for appellate counsel's errors he would have prevailed on his appeal.   There is no claim which if raised, persuades this court that the appellate court would have reversed and remanded for a new trial.   This court makes a finding of an absence of deficient performance on the part of Attorney Stevenson and also an absence of prejudice.   And for those reasons, count two is unproven.   And for all of the foregoing reasons, the petition for writ of habeas corpus is denied.

And I want to address the fifth count, actual innocence;  it is claimed in count five that the petitioner is actually innocent.   And he claims that evidence, in the form of witnesses or documentation, indicates that he was actually innocent.   In order to prove actual innocence, it is incumbent of the petitioner to establish by clear and convincing evidence, taking into account all the evidence, both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial, he is actually innocent of the crime of which he stands convicted.   This court finds that claim to be unproven given the totality of the evidence at trial and the evidence here.   There is no showing of actual innocence to meet the burden which is incumbent of the petitioner.   There is no reason to doubt the validity of the verdict from the jury and the court denies all the relief requested.

For all of those foregoing reasons, the petition is denied.

Judgment may enter in favor of the respondent.

I am requesting that notice of appeal rights be prepared for the petitioner.

The record shall reflect those rights have been prepared;  the Marshal is serving the notice of rights on petitioner's counsel.

I am requesting that an on-bench ruling transcript be prepared for my signature;  it shall constitute a Memorandum of Decision.

I am also permitting the petitioner to toll the period of appeal, pending receipt of the transcript, assuming the petitioner makes a timely request for same.

In addition, if there is an appeal, I am requesting the petitioner prepare a judgment file within thirty days.

And with that, again, I want to thank the patience of all the staff in staying this late hour.

The Court stands adjourned until 10 a.m. tomorrow morning.

Nazzaro, J.

Nazzaro, John J., J.