Arthur St. Thomas v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Arthur St. Thomas, brings this application for a writ of habeas corpus claiming that his trial counsel was ineffective.

After a trial to a jury, the petitioner was convicted in three different dockets of two counts of sexual assault in the second degree in violation of General Statutes § 53a–71(a)(1) and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53–21(1) and (2).   Petitioner received a sentence of thirty years, execution suspended after eighteen years with ten years probation.   The jury could reasonably have found the following facts:

In 1997, the defendant resided at a house in Bristol with his wife, his stepdaughter, A, and his stepson, J. At that time, A was approximately thirteen years old, and J was approximately twelve years old.   A's friend, B, who was also thirteen at the time, visited the house frequently.   While living at that house, the defendant periodically engaged in sexual activity with A and B. The defendant also directed B to engage in sexual activity with J. When A was fourteen or fifteen years old, she moved with her mother and J to Hartford, and the defendant moved to a second house in Bristol.   B temporarily resided with the defendant at the second house in Bristol on at least one occasion.   Sexual activity between B and the defendant continued until B was eighteen years old.

State v. Arthur S., 109 Conn.App. 135, 138, 950 A.2d 615 (2008).

The petitioner appealed his conviction to the Appellate Court asserting that the trial court erred in (1) admitting the portions of a witness's written statement that were consistent with that witness' testimony at trial and (2) failed to instruct the jury that the consistent portions of the written statement could not be used for substantive purposes.   The Appellate Court affirmed the judgment of conviction.  State v. Arthur S., supra, 109 Conn.App. 135.   Petitioner petitioned for certification to the Supreme Court, which denied the petition.  State v. St. Thomas, 289 Conn. 925, 958 A.2d 153 (2008).

On May 18, 2009, the petitioner brought this application for a writ of habeas corpus to this court.   In his amended petition, the petitioner claims that his trial counsel, public defender Kenneth Simon, was ineffective in that he failed to (1) properly cross examine the minor victim, A.D., regarding inconsistent statements;  (2) properly cross examine the minor victim B.R. regarding inconsistent statements;  (3) call A.D.'s younger brother, J.D., who petitioner claims would have offered exculpatory evidence;  (4) impeach the victim A.D. with evidence of her conduct after the petitioner was incarcerated after his arrest;  (5) call as a witness Mark Lodge who was available at trial and would have offered exculpatory evidence;  (6) investigate the disposition of the petitioner's assets by the state's witnesses while he was incarcerated prior to trial;  (7) investigate a conspiracy among A.D's mother and her boyfriend regarding the disposition of the petitioner's assets upon his incarceration, as impeachment material;  and (8) properly investigate the petitioner's case and failed to adequately prepare for trial.

The petitioner claims that but for his trial counsel's errors, it is reasonably probable that the result of the trial would have been different.   He asks the court to vacate his convictions and order a new trial.

The habeas trial in this case was held on January 19, 2012 and February 24, 2012.   In support of his claim the petitioner presented the testimony of himself, his trial attorney and his daughter, and submitted several exhibits.   At the conclusion of the trial, the court permitted the parties to file post-trial briefs.   The petitioner did not file a brief, but the respondent did file a post-trial brief.

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).  “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, 466 U.S. 668, 667, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   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;  Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009).

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 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.

It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as “counsel” as guaranteed by Sixth Amendment and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008);  Giannotti v. Warden, 26 Conn.App. 125, 120, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).   This the petitioner has not done in this case.

Having heard the evidence, including the testimony of trial counsel, Ken Simon, and reviewed the exhibits and briefs, the court finds that the petitioner has failed to meet his burden that counsel's conduct was deficient in any way, or that he was prejudiced.

As to petitioner's claims that trial counsel failed to properly cross examine the minor victims A.D. and B.R., the petitioner did not present any evidence to show what lines of inquiry trial counsel improperly pursued or failed to pursue or how such lines of inquiry would have changed the result in this case.   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”).

In addition, the court finds that Attorney Simon adequately crossed examined A.D. and B.R. thoroughly, based on his investigation and access to the victims for interviews prior to trial.   Simon believed that A.D.'s testimony was somewhat helpful to the petitioner, because despite the sexual assault, A.D. was fond of the petitioner and did not want him prosecuted.   Petitioner gave Simon a twenty-page document which includes possible areas of inquiry for A.D. and B.R. and Simon used that material to prepare his cross-examination of A.D. and J.D. In particular, Simon acknowledged that in questioning sexual assault victims, he is cautious not “beat up” on them.   Despite this, he brought out inconsistencies in A.D.'s and B.R.'s testimony.   An attorney's line of questioning of a witness is a tactical decision, which the court will not second guess.  Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 770, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

Petitioner claims that trial counsel failed to call Mark Lodge and J.D., A.D's younger brother, as defense witnesses at trial.   Neither Lodge nor J.D. testified at the habeas trial, and the petitioner did not introduce evidence to establish what these witnesses would have said at trial that would have been helpful to his defense at trial.  Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508 (1999) (“[t]he failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim”), cert. denied, 1248 Conn. 905, 731 A.2d 309 (1999).

As to J.D., trial counsel considered calling him, but decided that his testimony would not be helpful to the petitioner's case.   J.D. was also a victim in this case, having witnessed sexual acts between the petitioner and the other victims.   Simon believed that J.D. was very fragile and although J.D. wanted to help the petitioner, what he wanted to say and what he said in his statements was very different.   Trial counsel was not aware of Lodge or what he could add to the defense.

“ ‘The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.   Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial.   The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’  State v. Talton, 197 Conn. 280, 297–98, 497 A.2d 35 (1985).”  Vines v. Commissioner of Correction, 94 Conn.App. 288, 296, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006).  “[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).  Vines v. Commissioner of Correction, supra, 94 Conn.App. 297.   The court finds that the petitioner has failed to prove these claims.

As to the petitioner's claims that trial counsel failed to conduct an adequate investigation of the disposition of petitioner's assets by A.D.'s mother and her boyfriend while petitioner was incarcerated prior to trial, the court finds that trial counsel conducted an adequate investigation, and considered this claim and reasonably decided not to pursue it at trial for reasonable strategic reasons.¹

Moreover, the petitioner has failed to introduce any credible evidence to show what if anything the additional investigation would have shown.   See Holley v. Commissioner, supra, 62 Conn.App. 175.  “ ‘The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.   United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989)․’  (Citation omitted.)  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001);  see also Johnson v. Commissioner of Correction, supra, 285 Conn. 584 (petitioner failed to present evidence to take claim from realm of speculation to demonstrable reality).”  Gonzalez v. Commissioner of Correction, 127 Conn.App. 454, 459, 14 A.3d 1053, cert. denied, 302 Conn. 933, 28 A.3d 991 (2011).

Finally, the petitioner has failed to provide the court with any evidence that but for trial counsel's conduct, there was a reasonably probably that petitioner would have been acquitted of the charges.   This court's confidence in the outcome of the criminal jury trial has in no way been undermined.   Thus, the petitioner has failed to prove that he was prejudiced.  “[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.   Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways.   Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect ․ [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors ․ To establish prejudice, the petitioner must show that as a result of that [deficient] performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in [the] appeal.”  (Citation omitted;  internal quotation marks omitted.)  Nieves v. Commissioner of Correction, [supra, 51 Conn.App. 621].”  Gibson v. Commissioner, supra, 118 Conn.App. 875.

Accordingly, the court denies the petition.

Cobb, J.

FOOTNOTES

FN1. Indeed, trial counsel testified that he deemed this claim “ludicrous.”.  FN1. Indeed, trial counsel testified that he deemed this claim “ludicrous.”

Cobb, Susan Quinn, J.