322235 v. Warden (2012)

MEMORANDUM OF DECISION

In this habeas action, the petitioner, Jeff Blake, claims that his trial and appellate attorneys were ineffective and that his due process rights were violated during the state's closing arguments.   The court finds the issues for the respondent and denies the petition.

The defendant, Jeff Blake, was convicted, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1), sexual assault in the second degree in violation of General Statutes § 53a–71(a)(1) and risk of injury to a child in violation of General Statutes § 53–21.   The petitioner was sentenced to a total effective term of forty years incarceration suspended after thirty years with five years probation and special conditions of parole.

At the trial, the jury could reasonably have found the following facts:

In May 1993, the victim was fourteen years old and was living with her mother and her thirteen year old sister.   At the time of the incident, the victim's mother was not at home.   The victim's mother had been dating the defendant for a few years.   On May 3, 1993, the defendant arrived at the victim's home after 8 p.m., entered the home and kissed her on the left side of her neck.   The defendant grabbed both of the victim's arms and led her into the living room where he “nudged” her onto the couch, pulled her shorts and underpants down and had sexual intercourse with her.   The defendant told the victim not to tell anybody what had happened.   The defendant pulled a red handkerchief from his pocket and wiped himself and the semen that had spilled on the sofa.   The defendant then went upstairs to the bedroom of the victim's mother, and the victim went upstairs and took a bath.   When the victim's mother arrived home about twenty minutes later, the victim did not tell her mother what had occurred with the defendant.   The defendant stayed the night, which was not uncommon, and when he left the next morning, they did not see him again.

The next day, after school, the victim told her mother about the sexual assault.   Her mother then took her to a hospital to be examined.   Forensic examination did not reveal the presence of any semen, and there were no signs of bruising or other evidence of physical assault.   After the victim gave a statement to the police, the defendant was charged with sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child.

State v. Blake, 106 Conn.App. 345, 346–7 (2008).

The petitioner appealed his conviction to the Appellate Court and claimed that the trial court improperly (1) concluded that he had failed to make a sufficient preliminary showing to warrant an in camera examination of the victim's psychiatric records and (2) admitted DNA evidence through the state's expert witness.   The Appellate Court affirmed the judgment of conviction.   State v. Blake, 106 Conn.App. 345, 942 A.2d 496 (2008).   The petitioner then filed a petition for certification to the Supreme Court which denied the petition.  State v. Blake, 287 Conn. 922, 951 A.2d 573 (2008).

In March 2009, the petitioner brought this application for a writ of habeas corpus.   In the first count of his third amended petition dated February 1, 2012, the petitioner claims that his trial attorney, Norm Pattis, was ineffective in that he failed to:  (1) adequately file, present and prosecute the petitioner's motion seeking disclosure of the victim's mental health records;  (2) properly cross-examine the victim;  (3) call the victim's mother to testify about the dates of the victim's hospitalizations;  (4) argue to the jury that the only semen found on the underwear was located on the back portion of the underwear which was inconsistent with the sexual assault;  (5) argue to the jury that the underwear belonged to the victim's mother and not the victim due to its size;  (6) establish a claim under State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004), when he limited his challenge to Nicholas Yang's qualifications;  and (7) object to the state using the word “horrifying” during his closing argument.¹

In count two, the petitioner claims that his appellate counsel, Darcy McGraw, failed to seek review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), of the unpreserved claim that the state used the word “horrifying” during its closing argument.²

In his third count, the petitioner claims that the state engaged in prosecutorial impropriety by using the word “horrifying” during closing argument.

The habeas trial was held on February 14, 2012.   The petitioner called as witnesses his trial attorney, Norm Pattis, his appellate attorney, Darcy McGraw, the victim's mother, Debra Mitchell and himself.   He presented two exhibits, a certified copy of General Statutes § 53a–71 and the Appellate Court decision in the petitioner's direct appeal.   The state cross-examined the petitioner's witnesses, but did not call witnesses and introduced the transcripts of the trial.   Although the court allowed the parties to do so, neither party filed either pre-trial or post-trial briefs in this case.

Habeas Standards

It is well-established that in order to establish a claim of ineffective assistance of counsel, the petitioner has the burden to show that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “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 Sixth Amendment.'   “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom.  Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 667.

Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.  Strickland v. Washington, supra, 466 U.S. 687;  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010).   Ultimately, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 686.

When assessing trial counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689–90.   The United States Supreme Court explained:

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.

Id. (Internal citations omitted.)

Count One—Claims Against Trial Counsel

1. Failure to present and prosecute motion for disclosure of victim's mental health records.   The petitioner has failed to present sufficient evidence to prove this claim.   The testimony of petitioner's trial attorney, which the court credits, clearly established that he sought to obtain the victim's mental health records and to have the court undertake a preliminary in camera review of the records, not once but three times prior to and during the trial.   The trial court denied all of those requests.   The petitioner's appeal of the trial court's decision not to conduct an in camera review of the records was rejected by the Appellate Court.  State v. Blake, supra, 106 Conn.App. 345.

The petitioner has not met his burden to prove what more Pattis could or should have done to obtain these records, and therefore, he has not proved that Pattis' conduct was deficient.   Moreover, the trial court gave Pattis significant leeway in cross-examining the victim regarding her mental health history and arguing the victim's mental health issues during closing argument.   Thus, even though the petitioner did not obtain the petitioner's mental health records, trial counsel had the opportunity to present evidence of the petitioner's mental health issues to the jury.   The petitioner has, therefore, not met his burden to establish that he was deprived of a fair trial or that the trial was unreliable.³  Strickland v. Washington, supra, 466 U.S. 687.

2. Failure to call the victim's mother regarding the victim's mental health records.   The court finds that the petitioner has failed to prove this claim.   The petitioner offered no evidence to establish what if anything the victim's mother would have said regarding the victim's mental health or hospitalizations that Pattis should have presented at trial or in support of his motion seeking the victim's record.   Ms. Mitchell testified at the habeas trial, but did not present any relevant evidence on this claim.   Without such evidence, the petitioner cannot establish this claim.  Crawford v. Commissioner, 285 Conn. 585, 599, 940 A.2d 789 (2008) (“In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness has been done is not met by speculation ․ but by demonstrated realities”).   Moreover, as discussed supra, trial counsel was permitted broad latitude in questioning the victim during cross-examination concerning her mental health history and commenting on it during closing argument.   Thus, petitioner has not established prejudice.   Floyd v. Commissioner of Correction, 99 Conn.App. 526, 532, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).

3. Failed to argue that the only semen found on the underwear was located on the back portion of the underwear and inconsistent with the sexual assault.   There was evidence before the jury presented at trial by trial counsel that semen was located on the backside of panties.   Trial counsel argued this fact to the jury in his closing argument.   Thus, the petitioner failed to prove this claim.

4. Underwear offered to the police was from the mother of the victim due to its size.   The petitioner has failed to prove this claim.   Although he established that trial counsel did not raise this issue during closing argument, the petitioner has not presented any evidence to show that the failure to do so constituted deficient performance or that he was prejudiced by this omission.  Strickland v. Washington, supra, 466 U.S. 687.

5. Failed to establish a claim under State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004).   As to this claim, the record establishes that at trial, trial counsel objected to the state's expert testimony arguing that the state had failed to lay a sufficient foundation that the expert had an adequate understanding of the computer generated evidenced as set forth in State v. Swinton, supra, 268 Conn. 781.   Trial counsel was permitted to voir dire the expert on his background, qualifications and training at the criminal trial before he testified.   The trial court admitted the expert's testimony, over trial counsel's objection, finding that “it had reviewed Swinton, and that [the expert] had demonstrated a degree of expertise in the computer field and had sufficient knowledge of the functioning of the computer system and program.”  State v. Blake, supra, 106 Conn.App. 358.   The petitioner challenged the trial court's decision to allow the expert to testify on appeal and the Appellate Court affirmed it.  Id., 359.

Thus, the Swinton issue was raised by trial and appellate counsel, and both times the issue was raised, the petitioner lost.   That he made a claim and lost is not sufficient to establish a claim of ineffective assistance of counsel.   The petitioner claims that trial counsel did not “properly and adequately” establish a Swinton claim at trial.   It is not sufficient to simply allege that a trial attorney did not adequately take a certain action.   To prove this claim, the petitioner would have to produce specific evidence to establish, what trial counsel failed to do and/or should have done that he did not do.   Johnson v. Commissioner of Correction, 288 Conn. 53, 62–63, 951 A.2d 520 (2008) (“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 of the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”).   The petitioner produced no evidence to establish what else trial counsel should have done or how he was prejudiced by those omissions.  Crawford v. Commissioner, supra, 285 Conn. 599.   Thus, the court concludes that the petitioner has failed to prove this claim.

6. The “horrifying” claim.   This claim requires little discussion and borders on frivolous.   The petitioner claims that trial counsel was ineffective in failing to object to the state's single use of the word “horrifying” in its closing argument.   Pattis did not object to the state's use of the word horrifying in the state's closing because he did not find the use of the word objectionable or offensive, and therefore saw no basis for an objection.   Pattis was correct, as the use of the word “horrifying” by the state in its closing argument was an isolated event that did not constitute prosecutorial impropriety.   See e.g. State v. Gibson, 302 Conn. 653, 663, 31 A.3d 346 (2011) (two isolated rhetorical questions that arguably inserted expressions of personal opinion into closing argument not improper);  State v. Batista, 101 Conn.App. 623, 638, 922 A.2d 1116, cert. denied, 284 Conn. 918, 933 A.2d 721 (2007) (one isolated impropriety did not deprive defendant of a fair trial).

Because the use of the word “horrifying” by the state during closing argument did not constitute prosecutorial misconduct, it was not deficient for trial counsel to fail to object to the use of that word.   Thus, the petitioner has failed to prove this claim.

Count Two—Claims against Appellate Counsel

The petitioner has failed to prove this claim against appellate counsel for the same reasons that he has failed to prove it against trial counsel.   In addition, because this claim was not preserved, on appeal appellate counsel would have had to seek review under State v. Golding, supra, 213 Conn. 233 or the plain error doctrine.   The petitioner has not even attempted to prove that such a claim would have had any chance of success on appeal.  Small v. Commissioner of Correction, 286 Conn. 707, 722, 946 A.2d 1203, cert. denied sub nom.  Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).   In fact, appellate counsel testified, credibly, that such a claim would have little success on appeal.   Moreover, appellate counsel focused, as she should, on the strongest claims that were preserved at trial.  McIver v. Warden, 28 Conn.App. 195, 202, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992).

Thus, the petitioner has failed to establish his claim of ineffective assistance against appellate counsel.

Count Three—Prosecutorial Impropriety

For the reasons set forth above, the petitioner has failed to prove that the isolated use of the word “horrifying” during the state's closing argument constituted prosecutorial misconduct.   See e.g. State v. Gibson, supra, 302 Conn. 663;  State v. Batista, supra, 101 Conn.App. 638.   In addition, this free standing claim for prosecutorial misconduct could have been raised on appeal, the petitioner is procedurally defaulted from raising it in this habeas action.  Delgado v. Commissioner of Correction, 114 Conn.App. 609, 970 A.2d 792, cert. denied, 292 Conn. 920, 974 A.2d 721 (2009).

Conclusion

The petitioner has failed to establish any of his claims, and therefore the petition is denied.

So ordered.

Cobb, J.

FOOTNOTES

FN1. The third amended petition also claims that trial counsel was ineffective for (1) failing to object to the jury charge with respect to sexual assault in the first degree, sexual assault in the second degree, risk of injury and constancy of accusation;  and (2) conceding that the victim's January 18, 2003 letter was “lucid ․ certainly coherent” and that it did not suggest that the victim's mental state was impaired to the point that it would impact her ability to provide testimony.   At the conclusion of the trial, during argument, the petitioner indicated that he was not pursuing these claims and orally withdrew them..  FN1. The third amended petition also claims that trial counsel was ineffective for (1) failing to object to the jury charge with respect to sexual assault in the first degree, sexual assault in the second degree, risk of injury and constancy of accusation;  and (2) conceding that the victim's January 18, 2003 letter was “lucid ․ certainly coherent” and that it did not suggest that the victim's mental state was impaired to the point that it would impact her ability to provide testimony.   At the conclusion of the trial, during argument, the petitioner indicated that he was not pursuing these claims and orally withdrew them.

FN2. The third amended petition also claimed that appellate counsel was ineffective in failing to (1) adequately challenge the consciousness of guilt charge;  (2) adequately challenge the trial court's denial of the petitioner's motion in limine with respect to laying the proper foundation to the admission of the DNA testing results;  (3) adequately challenge the admission of medical records of the victim despite the petitioner's objection;  (4) adequately challenge the jury charge with respect to sexual assault in the first degree, sexual assault in the second degree, risk of injury, and constancy of accusation.   During closing argument, the petitioner withdrew these claims..  FN2. The third amended petition also claimed that appellate counsel was ineffective in failing to (1) adequately challenge the consciousness of guilt charge;  (2) adequately challenge the trial court's denial of the petitioner's motion in limine with respect to laying the proper foundation to the admission of the DNA testing results;  (3) adequately challenge the admission of medical records of the victim despite the petitioner's objection;  (4) adequately challenge the jury charge with respect to sexual assault in the first degree, sexual assault in the second degree, risk of injury, and constancy of accusation.   During closing argument, the petitioner withdrew these claims.

FN3. Count one also includes a claim that Pattis failed to cross-examine the victim as to whether she denied being medicated for hearing voices or whether she denied hearing voices.   At argument, the petitioner explained that this claim was the same as his claim regarding the mental health records.   The court finds that to the extent that there is any difference between these claims, the petitioner has not proved this second claim related to the victim's mental health for the reasons stated above..  FN3. Count one also includes a claim that Pattis failed to cross-examine the victim as to whether she denied being medicated for hearing voices or whether she denied hearing voices.   At argument, the petitioner explained that this claim was the same as his claim regarding the mental health records.   The court finds that to the extent that there is any difference between these claims, the petitioner has not proved this second claim related to the victim's mental health for the reasons stated above.

Cobb, Susan Quinn, J.