Antonio A. v. Warden (2011)

MEMORANDUM OF DECISION

The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus filed on July 3, 2006.   Counsel for the petitioner amended the petition on October 16, 2009.   The amended petition asserts a single claim—ineffective assistance by trial defense counsel—albeit premised on eleven alleged areas of deficiency.   The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief.   The return also asserts res judicata and collateral estoppel operate as a bar to the petitioner's allegation that the prosecutor engaged in misconduct during closing arguments.   The petitioner's reply denies that he is barred from raising this claim because the allegation is one of ineffective assistance of counsel.

The parties appeared before this court for trial on various dates between January and August 2010.   The court heard testimony from Lisa Murphy–Cipolla, Detective Wayne Mara, Attorney Michael Isko, Dr. Wendy Witt, M.D., and Dr. David Mantell, Ph.D. Although the evidence presented consists almost exclusively of testimony, the petitioner did enter a diagram into evidence and the respondent entered the criminal trial transcripts into evidence.   After reviewing and considering all the evidence presented, the court concludes that the petitioner has failed to meet his burden of proof.   Thus, for the reasons stated more fully below, the petition for a writ of habeas corpus is denied.

FINDINGS OF FACT

1. The petitioner was placed on probation in the Judicial District of Hartford at some time in State v. Antonio A., Docket number:  CR–98–0243446 (hereafter, the probation case).

2. The petitioner also was the defendant in a second matter, State v. Antonio A., Docket number:  CR–01–0179905, also pending in the Judicial District of Hartford.   On September 5, 2001, the petitioner was arrested and charged in docket number CR–01–0179905 with two counts of sexual assault in the first degree, in violation of General Statutes § 53a–70, and two counts of risk of injury to a minor, in violation of General Statutes § 53–21 (criminal case).

3. The petitioner was also charged with a violation of probation in the probation case.

4. The petitioner was represented in both the probation and the criminal case by public defender Atty. Michael J. Isko.

5. On July 7, 2003, the trial in the criminal case commenced before a jury.

6. On July 10, 2003, in the probation case, the court, Lavine, J., found that the petitioner had violated the terms of his probation.

7. On July 16, 2003, the jury in the criminal case found the petitioner guilty on all four counts.

8. Thereafter, the court, Lavine, J., sentenced the petitioner on September 19, 2003, in the criminal case to a sentence of forty years, execution suspended after the service of twenty years, followed by ten years probation, with lifetime sexual offender registration.   Judge Lavine also imposed a sentence of four years for the violation of probation, to be served consecutive to the sentence in the criminal case.   Thus, the total effective sentence imposed for both the criminal and probation cases is forty-four years, execution suspended after the service of twenty-four years, followed by ten years probation, with lifetime sexual offender registration.

9. The petitioner appealed the judgments of conviction, which were affirmed in State v. Antonio A., 90 Conn.App. 286, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005).

10. The Appellate Court decision summarized the underlying facts as follows:  “On the evening of August 12, 2001, the [petitioner] returned home from work.   His daughter, the victim, who had become eight years old the previous day, was sleeping in the living room.   The [petitioner] inserted his finger into the victim's vagina two times.   The victim later told her mother, who did not live with the [petitioner], what had happened and said that her vaginal area had become painful.   Her mother took her to a physician, who discovered that the victim had a vaginal injury consistent with digital penetration.”  State v. Antonio A., supra, 90 Conn.App. 289.

11. Additional facts will be discussed below as necessary to address the petitioner's claims.

DISCUSSION

The amended petition claims that the petitioner received ineffective assistance of counsel.  “ ‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.  Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].   This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.’  Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995).  ‘As enunciated in Strickland v. Washington, supra, 687, this court has stated:  It is axiomatic that the right to counsel is the right to the effective assistance of counsel ․ A claim of ineffective assistance of counsel consists of two components:  a performance prong and a prejudice prong.   To satisfy the performance prong ․ the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ․ 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.’   (Citations omitted;  internal quotation marks omitted.)  ․” Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom.  Murphy v. Bryant, U.S., 130 S.Ct. 259, 175 L.Ed.2d 242 (2009), citing and quoting Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008).

“ ‘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.’  (Internal quotation marks omitted.)  State v. Brown, 279 Conn. 493, 525, 903 A.2d 169 (2006).  ‘In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.   Prevailing norms of practice ․ are guides to determining what is reasonable, but they are only guides.   No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant ․”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 ․”Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.   A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'(Citations omitted;  internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 688–90.”   Bryant v. Commissioner of Correction, supra, 290 Conn. 512–13.

As previously indicated, the petitioner asserts a single claim of ineffective assistance by trial counsel premised on numerous alleged deficiencies.   The petitioner maintains that Attorney Isko rendered deficient performance because he failed to:  1) retain, consult with, and present the testimony of, a forensic pediatric gynecologist (or other medical expert) with an expertise in investigating and evaluating child sexual abuse allegations;  2) retain, consult with, and present the testimony of, a forensic psychologist (or forensic psychiatrist) with an expertise in investigating and evaluating child sexual abuse allegations;  3) adequately seek production and disclosure of educational records, psychological records, medical records, Department of Children and Families (DCF) records, police records, Aetna Foundation Children's Center (Center) records, and other records related to the forensic investigation and evaluation of the complainant's allegations;  4) adequately cross-examine, impeach and otherwise challenge the testimony of, the complainant;  5) adequately cross-examine, impeach and otherwise challenge the testimony of, Awilda Melendez;  6) adequately cross-examine, impeach and otherwise challenge the testimony of, Detective Wayne Mora;  7) adequately cross-examine, impeach and otherwise challenge the testimony of, Lisa Murphy–Cipolla;  8) adequately cross-examine, impeach and otherwise challenge the testimony of, Francisco Morales;  9) adequately cross-examine, impeach and otherwise challenge the testimony of, Wendy Witt, M.D.;   10) adequately present testimony that contradicts, refutes, and otherwise challenges the complainant's allegations;  and 11) object to prosecutorial impropriety during the prosecuting authority's closing arguments.   Amended Petition, pgs. 5–6.   In support of these allegations the petitioner presented the testimony of several witnesses.

Ms. Lisa Murphy–Cipolla, a witness during the criminal trial, also testified before this court.   Ms. Murphy–Cipolla testified that she is a Clinical Child Interview Supervisor at the Aetna Center, where she was an interviewer for two years and where she conducted the interview of the victim in this case.   Ms. Murphy–Cipolla indicated that she has been trained in interviewing techniques, is a licensed Marital and Family Therapist and has a M.S. degree in counseling.

Interviews of children conducted at the Center, such as the victim's interview, are video-taped.   According to Ms. Murphy–Cipolla, when a child alleges abuse and then is interviewed, the interviewer tries to gather as much information as possible without leading or being threatening.   In 2001, when the victim's interview was conducted by Ms. Murphy–Cipolla, the Center had a protocol about the conducting of interviews.   The child to be interviewed would be informed that there were people watching from behind a one-way viewing mirror.¹  The child is told to tell the truth, to not guess, and that it is okay to say “I don't remember.”

Ms. Murphy–Cipolla testified that the interview protocol includes an assessment of the child's competency.   The victim in this case was assessed.   The assessment encompasses an accuracy enhancement phase and a fact-finding phase.   The interviewer first gets the narrative and tries to get as much detail as possible.   The purpose of the interview is to get clear and accurate details of what happened.   The interviewer usually asks the child who the first person was the child told about the abuse.   Internal consistency, if present, in a child's rendition of events is supportive of credibility.   Additionally, the interviewer has the intake document that is prepared prior to the interview.

In this case, the source of the information in the intake document was Awilda Melendez, a DCF social worker.   Ms. Murphy–Cipolla had the intake document prior to the interview and also participated in a pre-interview meeting with Detective Mora, Ms. Melendez and the victim's mother.   The interview protocol, according to Ms. Murphy–Cipolla, requires the interviewer to look for alternative explanations.   The interviewer consistently looks to see if someone else has touched the child reporting abuse, as well as for signs (e.g., unnatural knowledge) that the child has been coached.   The main purpose of recording the interviews is so that the interview can be viewed instead of the child being re-interviewed, perhaps repeatedly.

Ms. Murphy–Cipolla acknowledged that while she is a licensed Family and Marital Therapist, she cannot diagnose sexual abuse.   In this case, the nature of the allegations was that the petitioner had inserted either a finger or fingers into the victim's vagina and rubbing her vaginal area.   This appeared to be a single incident.   Ms. Murphy–Cipolla acknowledged that she was unsure of what the victim precisely said, that the victim may have said that “He never touched.”   Ms. Murphy–Cipolla did not follow up on this.   The victim used a Spanish word to describe her vagina, a term that Ms. Murphy–Cipolla did not know was age appropriate.   She asked the victim about her clothing, which the victim indicated was wearing, and how the petitioner had put his finger in her.   The victim could not recall what she was wearing and said that the petitioner put his fingers in her private part and started rubbing.   At one point the victim said she was touched over her clothing.   The victim reported some blood on the underwear, but mother and not the victim was the source of the blood found on the underwear.   Ms. Murphy–Cipolla emphasized the importance of getting such details and that she did not use leading questions.

On cross-examination, Ms. Murphy–Cipolla noted that every interview is different.   The protocols serve as guidelines to be used during the interviews.   Because she does not want to put words into the child's mouth or lead the child, the child in a sense leads the interview because the interviewer goes where the child leads the interviewer.   Ms. Murphy–Cipolla indicated that she had interviewed approximately 500 children at the time she interviewed the victim in this case, with each interview averaging about an hour.

Attorney Isko, the petitioner's former trial defense counsel, testified that the judicial district of Hartford, where the petitioner was prosecuted, had an open file policy.   Attorney Isko saw and reviewed, amongst other items, the victim's DCF files, medical records including the culposcope findings, the video-taped interview conducted by Ms. Murphy–Cipolla.   Attorney Isko also had copies of statements, the Center's records, Manchester Police Department records, and the intake narrative and diagnostic report.   The victim's initial disclosure was to Dr. Witt;  thus, Attorney Isko, focused on that disclosure.   Attorney Isko reviewed the video taped interview and took substantial notes.   He was aware that the victim had said that the petitioner tried to put his finger in her, as that statement was made by the victim during the video taped interview.   Attorney Isko further testified that the victim did not say that the petitioner did not touch her, and that the video tape reflects this.

As to the examination of the victim, Attorney Isko testified that there was a notch on the victim's external genitalia, at the 7 o'clock position, and that this notch possibly was a healing tear.   Another notch was located at the 5 o'clock position.   Attorney Isko also was aware that the victim was diagnosed with a urinary tract infection (UTI) and that there was blood on the underwear.

Attorney Isko stated that he did not confront the victim about her saying that the petitioner had tried to put his finger inside her.   According to Attorney Isko, the victim was a well-mannered eight-year-old child who had no agenda against the petitioner.   He felt that the jury would not respond favorably to extensive questioning of a child and thereby seeking to highlight inconsistencies.   Attorney Isko also sought to limit, as much as possible, the extent of Ms. Murphy–Cipolla's testimony.   The forensic interview occurred about two weeks after the initial report and Attorney Isko did not want the video, which he thought showed a child and not a scheming “teen wannabe,” shown to the jury.   Attorney Isko kept an ongoing research file about the video tape issue and strove to keep the video tape out of evidence.

As to Ms. Murphy–Cipolla, Attorney Isko stressed that he endeavored to prevent her from explaining as many inconsistencies as possible and that he did not want her to become, and testify as, an expert witness.   Attorney Isko did not cross-examine her on whether she followed her own protocol, further indicating that he saw no valid reason to attack the interview itself and how it was conducted.   In Attorney Isko's words, the interview in this case was a proverbial red herring.   An additional significant concern for Attorney Isko was any evidence being presented to the jury about a prior bad act by the petitioner with another daughter, as well as Ms. Murphy–Cipolla explaining any inconsistencies between the prior bad act with another daughter and the incident involving the victim in this case.   Lastly, as to Dr. Witt, Attorney Isko expected her to testify about her examination of the victim.   Dr. Witt testified that her findings were consistent with, but not limited to, digital penetration.

Dr. Witt testified that she evaluated the victim, who reported that the petitioner had put his finger into her private parts.   Dr. Witt indicated that the victim had an UTI and that she prescribed a course of antibiotics.   A culposcope examination was conducted by Dr. Witt, who observed a notch on the posterior fourchette near the 7 o'clock position.   See Petitioner's Exhibit 1. Dr. Witt described the notch and a linear white line extending from the notch, noting that the white line was distinguishable from a congenital line, known as linea vestibularis, that is not present in every female or may even exhibit variations when present.   The white line, according to Dr. Witt, was not a linea vestibularis.   Dr. Witt opined that digital penetration might have been the cause of what now was healing tear.   Dr. Witt could not determine when the injury occurred.   Additionally, Dr. Witt examined the victim's hymen, which did not appear normal.   Dr. Witt further indicated that an UTI may result from digital penetration, fondling and rubbing, although there can be innocent explanations unrelated to sexual abuse for an UTI.

The petitioner also presented the testimony of David Mantell, Ph.D., a forensic psychologist with expertise in investigating child sexual abuse.   Although Dr. Mantell is not an M.D., he has had training in medical matters.   Dr. Mantell reviewed all relevant records in connection with the instant matter.   According to Dr. Mantell, the best evidence available to the trier of fact is the video taped forensic interview of a child reporting sexual abuse.²  Dr. Mantell noted that there are numerous protocols in conducting child sexual abuse interviews and that the Center's protocol is high quality, involving 1) rapport building, 2) competency assessment, 3) accuracy enhancement, 4) fact finding, and 5) closing the interview.   One of the purposes of utilizing the protocol is to help the fact finder make an appropriate decision.   The testimonial reliability of a complainant in a child sexual abuse case is central and the case rests heavily thereon.   Sometimes a child victim is untruthful about an event either happening or not happening.

Dr. Mantell testified that there are incorrect facts on the intake narrative.   Dr. Mantell was highly critical of Ms. Murphy–Cipolla's forensic interview, noting that she did not conduct the rapport building aspect of the protocol, nor the competency assessment and accuracy enhancement portions.   The rapport stage provides a social context for what the child is communicating or reporting.   The competency assessment stage involves establishing ground rules for the interview and to then test whether the child follows those rules.   Here, according to Dr. Mantell, there was no opportunity to train the child to give an incident report.   Dr. Mantell emphasized that it is important to follow the protocol steps, particularly with eight-year-olds, because this age group is particularly susceptible to coercion.   Ms. Murphy–Cipolla only probed once for inconsistencies and failed, according to Dr. Mantell, to pursue exculpatory statements.   The child appeared suggestible when an adult authority figured suggested incredulity.   Additionally, her report misquoted the child, potentially giving the appearance of the interviewer trying to make the report internally consistent.

Dr. Mantell conceded that he cannot give an opinion as to the veracity or truth of the complaint.   There are validation criteria used to assess the credibility of the child's statements.   One of these criteria is to assess the child's description of the mechanics of the way the injury occurred.   In the instant case, the victim did not describe those mechanics, although Dr. Mantell indicated that she should have had the capability to describe the mechanics.   Dr. Mantell noted other inconsistencies:  the child's testimony of care issues changed over time, potentially indicating the child became confused and reported abuse by the father to explain the UTI;  the video taped interview, in which the victim states the petitioner put his finger inside her but another time states that he had his hand on top of the clothing;  and the blood on the clothing.

On cross-examination, Dr. Mantell acknowledged that there is no such thing as a perfect forensic interview.   Dr. Mantell also indicated that there are numerous protocols in use throughout the United States, that he could easily think of eight such protocols, and that he uses his own protocol.   Rapport building is common to all of the various protocols, however.

Given all the foregoing testimony, in addition to the criminal trial transcripts, this court is unable to conclude, based upon the evidence presented, that Attorney Isko rendered ineffective assistance of counsel.   The petitioner has failed to show that any of the purported failures by Attorney Isko were so serious that he was not functioning as the counsel guaranteed by the sixth amendment.  State v. Brown, supra, 279 Conn. 525.   Attorney Isko's assistance was reasonable considering all the circumstances:  he investigated the case, prepared for trial and employed reasonable trial strategies.

Many of the petitioner's allegations pertain to trial counsel's failure to adequately cross-examine, impeach and otherwise challenge testimony of various witnesses.  “[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.)  Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).   It is the petitioner who must rebut this strong presumption.  “In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation but by demonstrable realities.  Adams v. United States, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942).   One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence.”   Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

Attorney Isko's performance falls squarely within the broadly delineated norms of competent representation.   To be sure, Dr. Mantell raised valid criticisms of how the forensic interviewer did not follow the Center's entire protocol.   There may well be some dispute within the psychological community as to the quality of Ms. Murphy–Cipolla's interview.   Moreover, trial defense counsel could have attacked or critiqued the protocol or the failure to follow the protocol.   However, even if this court were to assume that the failure to so attack or critique the protocol rose to the level of being deficient performance, which is questionable, the petitioner has not shown that he was prejudiced thereby.   This is particularly true given that there are various protocols used in the United States and even the petitioner's expert witness uses his own protocol.   The central goal of all of these protocols is to elicit as much accurate and independent information as possible, often from a very young child.   The petitioner here has not shown that Ms. Murphy–Cipolla's non-adherence to the Center's protocol resulted in either inaccurate or suggested or coerced information.   Furthermore, the victim testified before the jury about the petitioner putting his finger in her private parts.   The jury credited her testimony.   This court's confidence in the outcome of the criminal trial, therefore, has not been undermined in any way.   And as to the claim that Attorney Isko failed to retain, consult with, and present the testimony of, a forensic pediatric gynecologist or other medical expert, the court finds that this claim is unsubstantiated.

The petitioner's last enumerated allegation is that trial counsel failed to object to prosecutorial impropriety during the prosecuting authority's closing arguments.   One of the petitioner's claims on direct appeal was of prosecutorial misconduct during the state's closing arguments.  State v. Antonio A., supra, 90 Conn.App. 297–303.  “Specifically, the [petitioner] contend[ed] that the prosecutor improperly suggested that (1) the constancy of accusation witnesses could have provided more evidence if the court had allowed them to do so, (2) the jury could rely on the prosecutor and her intern as additional constancy of accusation witnesses and (3) defense counsel had tried to mislead the jury.”  Id., pg. 297.   The Appellate Court undertook this “inquiry even though the [petitioner] failed to object to the alleged misconduct in the prosecutor's closing argument.”  Id., pg. 298.   The Appellate Court applied the relevant legal standard and its factors “to the entire trial, because there is no way to determine whether the [petitioner] was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial.”  Id., pg. 298.

The claim on direct appeal was not one of ineffective assistance of counsel.   Nevertheless, the Appellate Court reviewed the claim of prosecutorial misconduct, premised on three separate and distinct instances of misconduct, in the context of the entire criminal trial, and ultimately concluded that the petitioner received a fair trial.   This court fails to see how the petitioner can show prejudice from any purported or even presumed deficient performance.

Based on the foregoing, judgment shall enter denying the amended petition for a writ of habeas corpus.   Petitioner's counsel shall prepare and file the judgment file with thirty days.

S.T. Fuger, Jr., Judge)

FOOTNOTES

FN1. In this case, Detective Mora and Ms. Melendez observed the interview through the one-way viewing mirror..  FN1. In this case, Detective Mora and Ms. Melendez observed the interview through the one-way viewing mirror.

FN2. Dr. Mantell testified on cross-examination that he routinely conducts similar forensic interviews, but that he does not have them recorded..  FN2. Dr. Mantell testified on cross-examination that he routinely conducts similar forensic interviews, but that he does not have them recorded.

Fuger, S.T., J.