318652 v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

On November 8, 2006, the petitioner, Vincent Griffin, filed a petition for a writ of habeas corpus, which was amended on December 23, 2009 and again on March 2, 2010.   In his second amended petition, the petitioner claims that he was denied the effective assistance of trial counsel in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut in a number of ways, to wit:  trial counsel failed to object to inadmissible hearsay testimony;  trial counsel entered into evidence the written, out-of-court statement given to the police by the victim;  trial counsel failed to request a jury instruction on consent to the effect that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.   For reasons stated more fully below, the petition is denied.

The matter came to trial on May 12, 2010.   The court heard testimony from Attorney Leonard Caine, the petitioner's trial counsel.   The petitioner entered into evidence the transcripts of his criminal trial and the written statement that the victim gave to the police.   The petitioner and the respondent filed posttrial briefs on March 2, 2011 and March 18, 2011, respectively.

Having reviewed all of the testimony and evidence, the Court makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a criminal case in the judicial district of Waterbury, bearing docket number CR03–318637, in which he was charged with sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1).

2. As stated by the Appellate Court, the jury could have reasonably found the following facts regarding the underlying offense:  “On Saturday, October 5, 2002, the defendant and L attended their twenty year high school reunion.   Having left her truck at the house of a friend's mother, L rode with two friends to the hotel where the reunion was held.   L conversed with many people at the reunion, including the [petitioner], whom she had known during high school through a mutual friend.   They talked for a time at the event, showed pictures of their respective children, consumed alcohol and, along with the two friends with whom L had arrived that evening, smoked a marijuana cigarette in the parking garage.

3. “At about midnight, when the reunion was ending, the friends with whom L had arrived decided they wanted to go home rather than to a bar where others were going.   L rode in the [petitioner's] vehicle to the nearby bar where they talked and had a few drinks until it closed.   The [petitioner] drove L back to her truck.   After he told L that he would never forgive himself if anything happened to her on her way home, the [petitioner] followed her to her house.   L drove her vehicle into her driveway, opened the garage door remotely and drove into the garage.   Upon exiting her truck, L noticed the [petitioner's] vehicle in the driveway;  she did not close the garage door behind her when she entered the house.   Unbeknownst to L, the [petitioner] also entered L's house, and she discovered him in the family room.

4. “L went into the kitchen and offered the [petitioner] a glass of water.   The [petitioner] grabbed her with both hands and started kissing her.   She was able to push him away and walked quickly into the living room towards the front door, but he followed her and began to kiss her again.   He pulled her onto the living room couch and continued to kiss her.   The [petitioner] lifted L's skirt and removed her undergarments, and L could feel him beginning to perform cunnilingus on her.   She was able to push him off and fell to the floor, where she pulled her undergarments back on.   L started to walk toward the front door again, and the [petitioner] grabbed her and pulled her into the bedroom, where he threw her on the bed, kissed her and again removed her undergarments.   L was able to wrest herself away and pull up her undergarments, and she ran down the hallway to open the front door.   The [petitioner] pulled L back onto the couch, and he removed her undergarments yet again.   She continued to plead with him to stop and told him to go home to his wife, to which he answered, ‘I don't give an F'n crap about my wife.’   The [petitioner] exposed his penis and attempted to insert it into her vagina, but, because her vagina was too dry, he spit on his hand, rubbed the spit on his penis and successfully inserted it.   The [petitioner] laid back on the couch after ejaculating inside her, and L collected her undergarments and ran into the bathroom.   She could feel his semen coming out of her and cleaned herself.   When she emerged, the [petitioner] was dressed and standing by the front door.   When asked if he could call her, she told him he never could.   After he left, she locked the door.

5. “On Monday, October 7, 2002, L went to a hospital to have a rape test performed.   Although she told some friends of the incident during the week, it was not until the following Monday that L decided she was ready to make a formal complaint to the police.   At the end of December 2002, a detective from the police department called the [petitioner] to inform him that there was a complaint against him;  they arranged to meet on January 2, 2003.   After waiving his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the [petitioner] informed the detective that he and L had kissed consensually and that he had not forced himself on her ․ At trial, the [petitioner] admitted that there was consensual sexual contact but maintained that there was no sexual intercourse.”  State v. Griffin, 97 Conn.App. 169, 170–73, 903 A.2d 253, cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006).

6. On February 4, 2004, following a jury trial, the petitioner was convicted as charged.¹

7. Thereafter, on April 19, 2004, the trial court, D'Addabbo, J., sentenced the petitioner to twenty years incarceration, suspended after fourteen years, two years of which is a mandatory minimum period, followed by twenty years of probation with a number of special conditions.²

8. The petitioner appealed from the judgment of conviction, which was affirmed by the Appellate Court.   See State v. Griffin, supra, 97 Conn.App. 169.

9. At all times relevant to this petition, the petitioner was represented by Attorney Leonard Caine.   Attorney Caine graduated from Villanova University in 1979 and from Howard University School of Law in 1982.   After being admitted to the Connecticut Bar, in 1983, he began practicing with his father until his death.   Attorney Caine then joined the law firm of M.J. Daly, III in Waterbury, where his practice consisted of criminal matters in both the G.A. and J.D. He was also under contract with the public defender's office and served as a special public defender for five or six years.   During that time, besides misdemeanors, he handled felonies, such as murder and sexual assaults.   As of 2004, he had handled over 300 Part A matters.   Of those, ten to fifteen went to trial.

10. Additional facts will be discussed as needed.

DISCUSSION

In his second amended petition, the petitioner alleges that his trial counsel rendered ineffective assistance.  “A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

“Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.”  (Citations omitted;  internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.

The petitioner first alleges that Attorney Caine rendered ineffective assistance by failing to object to the inadmissible hearsay testimony of Rebecca Wisnie and Anthony Rickevicius and by entering hearsay evidence, the written statement given to Rickevicius by the victim, into evidence.

“[A]n out-of-court statement offered to establish the truth of the matter asserted is hearsay ․ As a general rule, such hearsay statements are inadmissible ․” (Internal quotation marks omitted.)  State v. Faison, 112 Conn.App. 373, 383, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009).   Generally, a sexual assault victim's out-of-court statements are hearsay and thus, inadmissible.   There are some exceptions to this rule, such as the constancy of accusation doctrine, which allows a person to whom a sexual assault victim has reported the assault to testify to such.   However, constancy of accusation testimony is limited “to the fact and timing of the victim's complaint and as to details of the assault necessary to associate the complaint with the pending charge.”  (Internal quotation marks omitted.)  State v. Tocco, 120 Conn.App. 768, 785 n.8, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010);  see also State v. Troupe, 237 Conn. 284, 304–05, 677 A.2d 917 (1996).   Moreover, “such testimony [is] admitted only for corroborative purposes and not as substantive evidence.”  State v. Burney, 288 Conn. 548, 556–57, 954 A.2d 793 (2008).   A sexual assault victim's out-of-court statements, including details of the sexual assault, may also be admissible under other rules of evidence, “as, for example, in the case of a spontaneous utterance or in the case of a prior consistent statement admitted to rebut a claim of recent fabrication”;  State v. Troupe, supra, 237 Conn. 304 n.19;  or in the case of a prior inconsistent statement.   See Conn.Code Evid. §§ 6–10 and 8–5.

As part of its case-in-chief, the state called as witnesses Wisnie, the Waterbury police officer to whom the victim first spoke regarding the sexual assault on October 14, 2002, and Rickevicius, the Waterbury police detective to whom the victim subsequently spoke regarding the sexual assault on October 17, 2002.   During its direct examination of these witnesses, the state questioned them about what the victim told them and elicited details of the sexual assault from them.³  The state did not explicitly offer the testimony of either Wisnie or Rickevicius under the constancy of accusation doctrine or any other rule of evidence which would have allowed them to testify in detail regarding the victim's statements to them about the sexual assault.   Accordingly, their testimony could have been objected to on hearsay grounds.   Attorney Caine, however, did not object to their testimony.   Rather, he similarly elicited details of what the victim told them about the sexual assault during his cross-examination of them and even admitted the written, out-of-court statement given to Rickevicius by the victim during his cross-examination of Rickevicius.⁴

At the habeas trial, approximately six years after the petitioner's criminal trial, Attorney Caine could not recall the testimony of Wisnie or Rickevicius or exactly why he did not object to it.   He did, however, indicate that he does not object to every question that is objectionable in order to avoid being viewed by the jury as an obstructionist.   He also indicated on cross-examination that his trial strategy was to highlight the inconsistencies between the victim's testimony and her statements to the police in an effort to undermine her credibility and raise reasonable doubt as to the petitioner's guilt.   To that end, Attorney Caine testified that he entered the written statement that the victim gave to Rickevicius into evidence because he wanted the jury to see it.   He explained:  “There were such inconsistencies in there that I wanted a jury, and this is the trial strategy, to at least have something in there other than what they heard in the courtroom to look at, and the theory here was there were so many inconsistencies that the jury would not believe what she said and therefore couldn't convict [the petitioner].” ⁵

The petitioner has failed to overcome the presumption that Attorney Caine's failure to object to the hearsay testimony of Wisnie and Rickevicius and his admittance of the victim's written statement into evidence “under the circumstances ․ might be considered sound trial strategy.”  (Internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.   “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency ․ [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment.”  (Citation omitted;  internal quotation marks omitted.)  Servello v. Commissioner of Correction, 95 Conn.App. 753, 761, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).   A review of the record demonstrates that Attorney Caine's trial strategy was to undermine the victim's credibility and raise reasonable doubt as to the petitioner's guilt by emphasizing the inconsistencies between her testimony and her statements to the police and medical staff and by demonstrating that there was reasonable doubt as to whether the petitioner and the victim actually engaged in sexual intercourse.

To demonstrate that the petitioner was guilty of sexual assault in the first degree, the state had to prove beyond a reasonable doubt that he compelled the victim to engage in sexual intercourse by the use of force against her or by the threat of use of force against her, which reasonably caused her to fear physical injury.   See General Statutes § 53a–70(a)(1).⁶  “ ‘Sexual intercourse’ means vaginal intercourse ․ or cunnilingus ․ Penetration, however slight, is sufficient to complete vaginal intercourse ․” General Statutes § 53a–65(2).

There were numerous inconsistencies between the victim's testimony and her statements to the police.   For example, she did not tell either Wisnie or Rickevicius that the petitioner dragged her down the hallway and attempted to assault her in the bedroom.⁷  Moreover, her statement indicated that the petitioner “attempted to do oral sex on [her],” “tried to get his penis in [her] but couldn't” and that “[h]e masturbated over [her] until he ejaculated on the couch.” ⁸  Notably, it did not clearly indicate that the petitioner actually performed cunnilingus on her or that he actually had vaginal intercourse with her.   By choosing not to object to the testimony of Wisnie and Rickevicius on direct examination regarding the details of the sexual assault relayed to them by the victim and by admitting the victim's written statement into evidence, Attorney Caine was able to highlight these inconsistencies between the victim's testimony and her statements to the police in an effort to undermine her credibility and to raise a reasonable doubt as to the petitioner's guilt.   Accordingly, this Court finds that under the circumstances Attorney Caine's challenged conduct “falls within the wide range of reasonable professional assistance.”  (Internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.   That is, the petitioner has failed to prove deficient performance on the part of Attorney Caine.

The petitioner has likewise failed to prove any resulting prejudice from Attorney Caine's challenged conduct.   The petitioner argues that the testimony of Wisnie and Rickevicius and the victim's written statement greatly bolstered the state's case.   However, it is more likely than not that the state would have met its burden of proof even without this evidence.   Apart from this evidence, the jury had before it the testimony of the victim, the testimony of two constancy of accusation witnesses, to whom the victim had reported the sexual assault within a day of its occurrence, and the testimony of the nurse who assisted in administering the rape test on the victim.⁹  Additionally, the state presented evidence that the vaginal swabs taken from the victim less than forty-eight hours after the sexual assault and the stain on the victim's couch cushion contained sperm and that the petitioner was a contributor to the DNA found in the sperm rich fraction of the vaginal swabs and was the source of the DNA found on the sperm rich fraction of one of the semen stains isolated from the couch cushion.¹⁰  Based upon the above, there is no reasonable probability that had the hearsay evidence been excluded the result of the petitioner's criminal trial would have been different, as there was other evidence presented that tended to corroborate the victim's testimony.

The petitioner next claims that Attorney Caine rendered ineffective assistance by failing to request a jury instruction on consent to the effect that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.

“Consent is not an element of § 53a–70(a)(1), and a consent instruction is not always required.”  State v. Griffin, supra, 97 Conn.App. 186.  “A finding that a complainant had consented would implicitly negate a claim that the actor had compelled the complainant by force or threat to engage in sexual intercourse.   Consent is not made an affirmative defense under our sex offense statutes, so ․ the burden is upon the state to prove lack of consent beyond a reasonable doubt whenever the issue is raised.”  State v. Smith, 210 Conn. 132, 140, 554 A.2d 713 (1989).  “It is likely that juries in considering the defense of consent in sexual assault cases, though visualizing the issue in terms of actual consent by the complainant, have reached their verdicts on the basis of inferences that a reasonable person would draw from the conduct of the complainant and the defendant under the surrounding circumstances.   It is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent, even though there had been some concealed reluctance on her part.   If a defendant were concerned about such a possibility, however, he would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.”  Id., 141.  “Although a defendant is entitled to request an instruction that the state must disprove consent beyond a reasonable doubt under [State v. Smith, supra, 210 Conn. 132] our Supreme Court has not held that such an instruction is constitutionally mandated whenever the defense of consent is raised in sexual assault cases.”  State v. Blango, 103 Conn.App. 100, 118, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007).

In the petitioner's case, Attorney Caine did request a jury instruction on the issue of consent, which the trial court gave to the jury.   The trial court instructed the jury as follows:  “Consent.   If you find that the victim consented to the act of sexual intercourse, you cannot find that the act was compelled by the use of force or the threat of use of force.   Such consent must have been actual, and not simply acquiescence brought about by force, or by fear, or by shock.   In order for consent to sexual intercourse to negate the element of compulsion, the intercourse must be engaged in by the other person with no compulsion, no threat, no fear, and no force.   The act must have been truly voluntary on the part of the complainant.   You may find that consent was expressed or you may find that it's implied from the circumstances that you find existed.   Whether there was consent is a question of fact for you to determine.” ¹¹  On appeal, the Appellate Court held that the trial court “instructed the jury appropriately as to consent ․” State v. Griffin, supra, 97 Conn.App. 187.   Nonetheless, the petitioner contends that Attorney Caine should have further requested that the trial court instruct the jury that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.

Attorney Caine testified at the habeas trial that he did not request such an instruction because “the evidence didn't justify that instruction.” ¹²  This Court agrees.   As noted by the Appellate Court, “the [petitioner] did not argue that [the victim's] behavior led him to believe that she had consented to their engagement in sexual intercourse.”  State v. Griffin, supra, 97 Conn.App. 186 n.9. A review of the record reveals that there was never any suggestion made to the jury that the petitioner reasonably interpreted ambiguous conduct by the victim to indicate her consent.   Rather, the theory of defense was that the victim had fabricated her testimony about being forced by the petitioner to engage in sexual acts and that she had actually initiated the acts, which notably did not include sexual intercourse.   For example, the petitioner “testified that [the victim] invited him into her house for a drink, and, while they were in the kitchen, she leaned into him and they embraced and kissed.   While on the couch, he alleged that she was on top of him and was rubbing her body against his.   He further claimed that they attempted to engage in sexual intercourse, but because his penis was too soft, she stimulated him manually until he ejaculated.”  State v. Griffin, supra, 186.   The reasonableness of the petitioner's belief that the victim had consented was simply not an issue in the case.   Accordingly, Attorney Caine cannot be faulted for failing to request the desired jury instruction.

Furthermore, even if Attorney Caine had requested the jury instruction, it is not likely that the trial court would have given the instruction.   As noted by the Appellate Court, “it is questionable whether a consent instruction would be mandatory.”  State v. Griffin, supra, 97 Conn.App. 188 n.10. Additionally, as discussed above, the evidence did not justify such an instruction.   In any event, even if the jury instruction had been given, there is no reasonable probability that the result of the proceeding would have been different.   Contrary to the petitioner's contention, there was more evidence of lack of consent and the use or threat of use of force than just the victim's testimony regarding the petitioner's physical size.   The victim testified that she told the petitioner to stop and go home on several occasions and that she tried to push him away.   She also testified that he grabbed her and dragged her down the hallway into the bedroom and that after she was able to get away from him and run to the front door, he grabbed her again with even more force and pushed her down onto the couch, where he sexually assaulted her.¹³  Moreover, as noted by the Supreme Court, “[i]t is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent ․” State v. Smith, supra, 210 Conn. 141.   Consequently, the petitioner has failed not only to meet his burden in proving deficient performance but also his burden in proving prejudice resulting from Attorney Caine's failure to request the desired jury instruction on consent.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. Petitioner's Exhibit [Exh.] 7, pp. 14–18..  FN1. Petitioner's Exhibit [Exh.] 7, pp. 14–18.

FN2. Petitioner's Exh. 8, pp. 30–32..  FN2. Petitioner's Exh. 8, pp. 30–32.

FN3. Petitioner's Exh. 3, pp. 77–91, 133–55..  FN3. Petitioner's Exh. 3, pp. 77–91, 133–55.

FN4. Petitioner's Exh. 3, pp. 94–105;  Petitioner's Exh. 4, pp. 36–65..  FN4. Petitioner's Exh. 3, pp. 94–105;  Petitioner's Exh. 4, pp. 36–65.

FN5. May 12, 2010 Habeas Trial Transcript, p. 13..  FN5. May 12, 2010 Habeas Trial Transcript, p. 13.

FN6. General Statutes § 53a–70(a)(1) provides in relevant part:  “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ․ or by the threat of use of force against such other person ․ which reasonably causes such person to fear physical injury to such person ․”.  FN6. General Statutes § 53a–70(a)(1) provides in relevant part:  “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ․ or by the threat of use of force against such other person ․ which reasonably causes such person to fear physical injury to such person ․”

FN7. Petitioner's Exh. 3, pp. 95–96;  Petitioner's Exh. 4, pp. 36–37..  FN7. Petitioner's Exh. 3, pp. 95–96;  Petitioner's Exh. 4, pp. 36–37.

FN8. Petitioner's Exh. 9..  FN8. Petitioner's Exh. 9.

FN9. Petitioner's Exhs. 1–3..  FN9. Petitioner's Exhs. 1–3.

FN10. Petitioner's Exh. 4, pp. 83–95..  FN10. Petitioner's Exh. 4, pp. 83–95.

FN11. Petitioner's Exh. 6, pp. 106–07..  FN11. Petitioner's Exh. 6, pp. 106–07.

FN12. May 12, 2010 Habeas Trial Transcript, p. 15..  FN12. May 12, 2010 Habeas Trial Transcript, p. 15.

FN13. Petitioner's Exh. 1, 114–28..  FN13. Petitioner's Exh. 1, 114–28.

Santos, Thelma A., J.