James B. v. Warden, State Prison (2014)

MEMORANDUM OF DECISION

The petitioner seeks habeas corpus relief from his conviction, after a jury trial, for risk of injury to a child, for which crime he now serves a sentence of fifteen years imprisonment, execution suspended after ten years, and ten years probation.   This judgment was affirmed on direct appeal, State v. James B., 129 Conn.App. 342 (2011);  cert. denied, 302 Conn. 910 (2011).   In his amended petition, dated January 29, 2014, the petitioner asserts claims of actual innocence and ineffective assistance of his criminal defense counsel, Attorney Sebastian DeSantis.

I

Actual Innocence Claim

The petitioner's posttrial brief fails to address this claim and the court can regard it as abandoned.   Alternatively, the Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Corbett v. Commissioner, 133 Conn.App. 310, 315 (2012);  Vazquez v. Commissioner, 128 Conn.App. 425, 444 (2011);  Gaston v. Commissioner, 125 Conn.App. 553, 558–59 (2010);  Weinberg v. Commissioner, 112 Conn.App. 100, 119 (2009);  Grant v. Commissioner, 103 App. 366, 369 (2007);  Johnson v. Commissioner, 101 Conn.App. 465, 469–70 (2007);  Batts v. Commissioner, 85 Conn.App. 723, 726–27 (2004);  Clarke v. Commissioner, 43 Conn.App. 374, 379 (1996), appeal dismissed, 249 Conn. 350 (1999);  Williams v. Commissioner, 41 Conn.App. 515, 530 (1996), appeal dismissed, 240 Conn. 547 (1997).

“Newly discovered evidence” is “such that it could not have been discovered previously despite the exercise of due diligence,” Skakel v. State, 295 Conn. 447, 466–67 (2010).   Due diligence is reasonable diligence, Id., 506–07.  “Due diligence does not require omniscience,” Id., 507.   It means “doing everything reasonable, not everything possible,” Id. The query to be answered is “what evidence would have been discovered by a reasonable [criminal defendant] by persevering application and untiring efforts in good earnest,” Id. The petitioner failed to produce any proof of any newly discovered evidence pertaining to his actual innocence.   The testimony and evidence addressed at the habeas trial were well known to the petitioner and Attorney DeSantis and/or his investigators at the time of the criminal trial.   Consequently, the actual innocence claim is denied.

II

The remaining count alleged that Attorney De Santis provided ineffective assistance by failing to investigate properly the strengths and weaknesses of the petitioner's case and those aspects of the state's case;  by failing to uncover exculpatory evidence to support available defenses and mitigating circumstances;  by failing to retain the services of an expert in the area of interviewing children who may have been the victims of sexual abuse and to utilize such evidence at the criminal trial;  by failing to cross examine the complainant properly;  and by failing to explain the elements of the crime of risk of injury to the petitioner.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.

This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

The specification of ineffective representation concerning the procurement of expert witnesses is easily addressed.   First, Attorney DeSantis did retain Doctor Robert Fox, a forensic psychiatrist, to assist him in his review of the complainant's statements to authorities, her school records, and Department of Children and Families records.   The complainant's guardian ad litem refused to allow any member of the defense team to speak with her.   Doctor Fox aided Attorney DeSantis in developing trial strategy and preparing for trial.

As to the failure to present defense expert testimony at the criminal trial, no such expert witnesses were produced at the habeas hearing by the petitioner.   Consequently, the petitioner cannot prove that any such expert was available at the time of the criminal trial nor that the content of such testimony would have been favorable to the petitioner.   It is incumbent upon the petitioner to demonstrate how the failure to call a witness negatively affected the outcome of his criminal case, Henderson v. Commissioner, 129 Conn.App. 188, 195 (2011).   In other words, the burden is on the petitioner to establish what a putative witness would have stated which would have benefitted his criminal case.   Proof of ineffective assistance for failing to call any witness, expert or not, cannot be based on pure speculation as is proposed in the present case.

Regarding the failure to explain the elements of the crime of risk of injury to the petitioner, the following additional facts are found.   The petitioner faced two charges of sexual assault first degree as well as the risk of injury count.   Attorney DeSantis succeeded in having one sexual assault count dismissed at the conclusion of the state's evidence.   He also persuaded the jury that reasonable doubt existed with respect to the other sexual assault allegation which resulted in the petitioner's acquittal on that count.   The petitioner now complains that, although Attorney DeSantis discussed the elements of sexual assault first degree with him, this lawyer never did so as to risk of injury.

Assuming, arguendo, that Attorney DeSantis omitted that discussion, the petitioner's lack of knowledge of those elements had no bearing on the jury's verdict.   A careful review of the criminal trial evidence reveals that the petitioner's ignorance of the legal description of risk of injury could not have influenced the outcome of his trial, that is, the jury's verdict that the petitioner engaged in the sexual misconduct of his daughter.   Therefore, any purported inadequacy as to the legal explanation of risk of injury was nugatory.

The court also finds that the allegations that Attorney DeSantis failed to discuss the strengths and weaknesses of the criminal case with the petitioner, if true, failed to prejudice the petitioner in any way.   It should be noted that there is no claim of ineffectiveness regarding rejection of a plea offer.   The petitioner was adamant in his desire for a jury to decide his fate.

The remaining allegations of ineffective preparation and trial performance all stem from the petitioner's assertion that Attorney DeSantis ought to have presented the testimony of Melanie Aubin and Jason Adams.   These individuals did testify at the habeas hearing.   Their testimony bore on the description of the incommodious living room in which the petitioner was questioned by a police officer and a DCF investigator.   The petitioner made damaging statements during the interview which were the subject of an unsuccessful motion to suppress.   The two witnesses also testified at the habeas hearing as to the petitioner's good relationship with the complainant, her erratic emotional state, and her lack of veracity.

However, these witnesses had been thoroughly interviewed by Attorney DeSantis and/or his investigators while the criminal case was pending.   Attorney DeSantis consciously choose to refrain using them as witnesses.   The cramped living room in which the petitioner was questioned was explored by Attorney DeSantis through the cross examination of the interrogators and the testimony of the petitioner and his stepfather.   Attorney DeSantis made the tactical decision not to present Aubin and Adams as defense witnesses because he feared that their testimony might very well open the door for the prosecutor to introduce rebuttal evidence regarding the petitioner's poor conduct with respect to the care of the complainant and his multiple battles with DCF. A tactical decision to refrain from utilizing a witness which falls within the wide range of reasonable, professional conduct cannot form the basis for a valid, ineffective assistance claim, Stephen S. v. Commissioner, 134 Conn. 801, 820–21 (2012).   The reasonableness of the decision must be viewed from the trial attorney's perspective at the moment it was made rather than through the distorting lens of hindsight, Vines v. Commissioner, 94 Conn.App. 288, 296 (2006).

More to the point, Attorney DeSantis's cross examination of the complainant, in this court's opinion, was masterful.   He elicited from her all the same beneficial information which Aubin and Adams could have supplied about the victim, the petitioner, and their relationship.   His crossexamination consumes forty pages of transcript despite the fact that his questions were very concise and nonrepetitious.   He handled the difficult task of probing the accusations of a child, who had been abandoned by her mother and claimed to have been sexually abused by her father, delicately and deftly.

The court concludes that the petitioner has failed to meet his burden of proving ineffective assistance under the Strickland standard in any of the ways alleged.   The amended petition is, therefore, denied.

Sferrazza, J.

Sferrazza, Samuel J., S.J.