204641 v. Warden (2014)

MEMORANDUM OF DECISION

The petitioner, Cecil James, has brought this petition for a writ of habeas corpus claiming that his trial counsel was ineffective during his criminal trial in violation of the state and federal constitutions.   He seeks an order from this court vacating his criminal conviction in State v. James, Docket No. CR–03–0325106, judicial district of Waterbury, and remanding the matter to the criminal trial court.   The court finds several of the issues for the petitioner, and therefore, grants the petition and vacates the petitioner's convictions.

PROCEDURAL HISTORY AND FACTUAL FINDINGS

On December 14, 2004, the petitioner was convicted, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes §§ 53a–70(a)(1) and (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53–21.   Attorney Doris B. D'Ambrosio represented the petitioner throughout the criminal proceedings.   The trial court sentenced the petitioner to a total effective sentence of seventeen years of incarceration, followed by five years special parole.

The petitioner appealed his conviction to the Appellate Court, which affirmed it.  State v. James, 99 Conn.App. 274, 913 A.2d 505 (2007).   His petition for certification to the Supreme Court was granted;  State v. James, 282 Conn. 904, 920 A.2d 310 (2007);  but after considering the petitioner's appeal, the Supreme Court affirmed the Appellate Court's decision.  State v. James, 291 Conn. 813, 970 A.2d 710 (2009).

According to the Supreme Court, the following facts could reasonably have been found by the jury.

The defendant had been a member of the male victim's household and had been in a relationship with the victim's mother from the time the victim was two years old.   The household also included the victim's mother, brother and two half-brothers.   On an unspecified, snowy vacation day during the 1998–1999 school year, the nine-year-old victim was at home playing video games with his two younger half-brothers, M and A. The defendant asked the victim to step out of the living room with him and to go into the bathroom.   Although the victim initially resisted going there, when he was threatened with a beating, he did as he was told.

After closing the bathroom door, the defendant ordered the victim to pull down his pants and to lean over the bathtub.   Once the defendant had pulled his own pants down, he held the victim in place and anally penetrated him.   Hearing the apartment door open, the defendant warned the victim not to say anything.   The victim's mother overheard this warning and saw the victim and [the] defendant pulling up their pants.   Although she inquired about what was going on, the victim responded that nothing had happened.

After an altercation between the defendant and the victim's mother, the defendant left.   Examining the victim's rectal area, the mother found it to be red and swollen.   The mother called the family's pediatrician to express her concern that the victim might have been sexually abused.   Although she was advised to take the victim to a hospital, she did not do so because the pediatrician would not confirm, over the telephone, that the victim had been sexually assaulted.

After this incident, the victim slept more often on the couch in the living room.   Some nights, he would wake up to see the defendant running away.   He would then become aware of the fact that his pants were down and sometimes would experience pain in his face or his anus.

At some time subsequent to these incidents, the victim was sent away from his home to live at the Stetson School in Massachusetts.   During one of the victim's therapy sessions at the school, the victim's mother asked him what he thought about the defendant.   The victim answered that the defendant was a sexual predator.   Asked by his therapist to clarify what he meant by that, he declined to do so orally but wrote his answer down.   He explained that he was still too nervous about what had happened to be able to talk about the events out loud.

(Internal quotation marks omitted.)  State v. James, 291 Conn. 816–17.

On June 11, 2010, the petitioner brought this petition for a writ of habeas corpus.   In his May 23, 2013 amended petition,¹ the petitioner claims that his trial counsel's representation of him at his criminal trial was constitutionally deficient and that, as a result, he was prejudiced.   In particular, the petitioner claims that trial counsel failed to adequately:  (1) make an offer of proof as to why the complainant's sexual conduct should have been admissible under General Statutes § 54–86f;  (2) cross examine, impeach and otherwise challenge the testimony of the victim;  (3) cross examine, impeach and otherwise challenge the testimony of the victim's therapist, Mary Elizabeth Hopkins;  and (4) cross examine, impeach and otherwise challenge the testimony of the victim's mother, including presenting the testimony of Debra Kennedy, the foster mother of two of the victim's stepbrothers, and Dr. David Mantell.

A trial was held on the petition on various dates in October 2012 and April 2013.   The petitioner introduced the testimony of Doris D'Ambrosio, the petitioner's trial attorney, the victim's mother, Eric Frazer, Psy.D., an expert clinical forensic psychologist, Attorney Michael Sheehan, an attorney expert, the foster mother to two of the victim's stepbrothers, David M. Mantell, Ph.D., a licensed clinical psychologist, and Debra Kennedy, a therapist from the Family Services Center of Greater Waterbury.   The petitioner submitted over seventy exhibits.²  The respondent did not introduce any witnesses and submitted only one exhibit, the mittimus.   Both parties filed several post-trial briefs and the court heard argument on September 24, 2013.

Based on the evidence introduced at the habeas trial, as well as the expanded record, the court finds the following facts:

The Habeas Trial

The victim's mother was a frequent cocaine user, and in the early 1990s she met the petitioner, who she described as her “dealer.”   At some point, the petitioner and the mother became romantically involved, and the relationship resulted in the birth of two children, A., born in 1992 and M., born in 1993.   At that time, the mother had two older children fathered by two different men;  F. born in 1985, and the victim born in 1989.   The petitioner lived with the mother and the four children at various times in New Hampshire.   In the mid–1990s they moved to Connecticut.   While in Connecticut, the mother lived with her children in Waterbury.   The petitioner lived with his brother at his brother's residence in Waterbury.   Although the petitioner did not live with the mother and the children, he spent four to five nights a week there with the mother and visited the children regularly.   The petitioner's and the mother's relationship can be described generally as a very tumultuous one.

Sometime in the winter of 1998–1999, when the victim was nine years old, the mother became suspicious when she arrived home and saw the victim and the petitioner exiting the bathroom and pulling up their pants.   She claimed to have heard the petitioner say “you better not say anything.”   When she asked the victim and the petitioner what was going on, they both said “nothing.”   She told the petitioner to leave and examined the victim's rectum, which she stated looked red and did not look “normal.”   When the mother asked the victim why his butt was red, he stated that he had trouble moving his bowels.   The mother called the children's pediatrician, Dr. Shaban, who told her to take the victim to the hospital to be examined.   She did not do so, nor did she contact the police.   Dr. Shaban, a mandatory reporter, did not credit the mother's claims and did not contact the police himself because he was aware that the mother had mental health issues and thought she was “kooky.”

In late February 1999, the three children were removed from the mother's home after a hospital social worker reported to the department that M. had sustained injuries after falling out of a third-floor window on February 14, 1999, at 1:15 in the afternoon.   The mother was in bed when the fall occurred.   The department initiated an investigation and filed neglect petitions as to all of the four children in juvenile court.   This started the family's years under the supervision of the department and years of juvenile court proceedings on the neglect petitions.   The mother claimed that she told the department about her suspicions regarding the petitioner sexually assaulting the victim when it became involved with the family.   However, there is no evidence that the department conducted any investigation into the sexual abuse allegations involving the victim and the petitioner until several years later in 2003.

In June 1999, the juvenile court adjudicated the children neglected.   The oldest child, F., was returned to his biological father.   The victim, age 9, M., age 6, and A., age 5, were committed to the care and custody of the department and lived together with their maternal grandmother.   Later, M. and A., the petitioner's children, were placed in foster care.   Extensions of the commitments were sought and received by the department over the next several years.

Attorney D'Ambrosio represented the petitioner in the neglect proceedings in juvenile court as to his two children, M. and A. Those proceedings and the department's investigation occurred over the course of a number of years from about 1999 to 2004 at least.   As a result of her representation of the petitioner in relation to the neglect proceedings of M. and A., Attorney D'Ambrosio had access to the confidential juvenile court records and certain department records in those proceedings.   Those records included information as to all members of the family including the victim, the mother and the petitioner.

These records paint a disturbing picture of a troubled family, with a neglectful mother with serious mental health and addiction issues.   They also show that the petitioner was working with the department to overcome his serious parenting issues so that he could obtain custody of his two children, M. and A. In contrast, these records reflect that the mother was volatile, inconsistent and mostly noncompliant with the department's attempts at reunification.

While the three boys were living with their maternal grandmother, in 2000, M. reported to her that his brother, the victim, sexually assaulted him.   Neither M.'s mother nor his grandmother reported the allegation to any authorities.   M. then told the petitioner that the victim sexually abused him and the petitioner notified the department.   As a result of this allegation, the department placed victim at the Stetson School in Massachusetts, which is a school that specializes in youthful sexual offenders.   M. and A. were removed from their maternal grandmother's care and the petitioner received temporary guardianship of them.   Later the boys were removed from the petitioner's home and placed in foster care after the petitioner physically assaulted A.

M. and A. spent time in the care of the foster mother.   While the children were living with the foster mother, both the petitioner and the mother visited them.   The foster mother testified that the petitioner interacted well with the children when in her presence and did not criticize the mother.   When the mother visited the children, the foster mother observed her interacting with the children.   She heard the mother speak critically of the petitioner to the children.   The mother stated in front of the foster mother and the children on a number of occasions that she would like to see the petitioner “rot” in jail.   On several occasions, the foster mother heard the mother urge M. to say that the petitioner had sexually assaulted him.   M. refused and said that never happened.   After the mother's visits with the children, they would be agitated and upset and unable to sleep.

The court finds the foster mother's testimony about these events credible and that she was available to testify at the criminal trial.   Although Attorney D'Ambrosio knew about the foster mother and that the mother tried to encourage M. and A. to accuse the petitioner of sexual abuse, she did not attempt to interview the foster mother or use this information at trial to impeach the mother, even though it would have been consistent with the petitioner's theory of defense that the mother had fabricated her claims and undermined her credibility.

In September 2003, while the neglect proceedings were ongoing, and the petitioner and the mother were estranged, the petitioner was arrested and charged with sexual assault in the first degree and risk of injury to a minor for sexually abusing the victim in the winter of 1998–1999.   The arrest stemmed from the victim's statements during a therapy session while he was confined at the Stetson School for sexually abusing his younger brother, M. The therapist reported the victim's statements to the department, who reported them to the Waterbury police department.   The Waterbury police and the department conducted an investigation into the allegations of sexual abuse of the victim by the petitioner, which included interviewing the victim on two occasions, the victim's mother, the petitioner and M. Contrary to the general norms in 2002 and 2003, no neutral independent multidisciplinary investigatory team was engaged to review the victim's allegations, even though the victim was a minor at the time of the assault and the disclosure, and no forensic interview of the victim was conducted prior to the petitioner's arrest.³

At the time of the petitioner's arrest, Attorney D'Ambrosio was representing the petitioner in the neglect proceedings in juvenile court.   The petitioner asked Attorney D'Ambrosio to represent him in the criminal case.   At the time, Attorney D'Ambrosio had been practicing law for twenty years in a number of practice areas, including criminal, family, juvenile, real estate and probate.   Her criminal law experience was limited to cases involving domestic violence and those cases resulted in plea agreements or diversionary programs.   Attorney D'Ambrosio had never before (or since) tried a criminal case to conclusion, and had never represented a defendant in a sexual assault case or a sexual assault case involving a minor.   Cases involving sexual assaults generally and those involving minors are considered specialized and require extremely thorough preparation.   Attorney D'Ambrosio agreed to represent the petitioner in the criminal case, despite the fact that she had no criminal trial experience or experience in sexual assault cases.   Attorney D'Ambrosio did not fully inform the petitioner of her lack of criminal trial experience.

Although Attorney D'Ambrosio claimed she consulted with an attorney friend about the case, she did not know, or ask him, if he had any experience handling serious felony sexual assault cases involving minor victims.   Although she claimed to have researched legal issues, she did not recall what issues she researched.   She was unfamiliar with the doctrine of constancy of accusation, rape shield and other legal doctrines and theories frequently raised in sexual assault cases.   Attorney D'Ambrosio destroyed documents containing her work product that were stored on her computer two years after the trial because she did not anticipate that there could be post-conviction proceedings, including a habeas action.

As a result of her representation of the petitioner in the juvenile court proceedings, Attorney D'Ambrosio had access to all of the juvenile court files regarding M. and A., and was therefore aware, or should have been aware, of the contents of those records.

Attorney D'Ambrosio did not hire a private investigator in this case.   Her investigation of the case appears to have been derived primarily from her knowledge of the juvenile court file, stemming from her representation of the petitioner in the neglect proceedings involving M. and A. on the petitioner's behalf.   She did not interview certain important witnesses, including Debra Kennedy or the foster mother to M. and A., even though they were available and she knew of them, because she wrongly believed that they did not have any helpful information.

Attorney D'Ambrosio believed that the only way to gain access to confidential juvenile court files for use in the criminal proceedings was to seek permission from the juvenile court.   She believed that the only way to obtain confidential documents from the department was to subpoena the documents to the criminal trial.   She was not aware that she could subpoena the documents to the criminal trial, seek documents through discovery in the criminal proceeding or that the prosecutor ⁴ had statutory access to all of the confidential files.   See General Statutes §§ 17a–28(g)(7);  46b–124(h);  46b–124(i).

Because of her lack of familiarity with criminal cases involving the sexual abuse of children, Attorney D'Ambrosio was unfamiliar with the standard investigative approach taken in most child sexual abuse cases at the time involving a MIT and a forensic interview in order to determine the credibility of the allegations.   She did not know that such an approach had not been taken in this case.   Despite her lack of experience trying criminal cases and sexual assault cases of children, she did not retain a forensic psychologist or psychiatrist or similar mental health professional with experience investigating and assessing child abuse allegations to assist her in preparing the case or to testify in this matter.   She believed that she did not need and could not introduce the testimony of such an expert witness because the court denied her motion to have a psychological examination of the victim and mother.   She also believed that using such experts was not the norm at the time.

Although she knew from the petitioner that there were child support proceedings brought by the petitioner against the mother, she did not seek to obtain the court records of those proceedings.   She was unaware that the mother had a recent felony record when she testified at the criminal trial, even though such information was easily obtainable and accessible to her through discovery or court files.

Attorney D'Ambrosio was aware that on October 4, 2004, just two months prior to the criminal trial, in connection with the juvenile proceedings, Dr. David Mantell had evaluated the mother and determined that she suffered from mental health issues, including a thought disorder called “paranoid delusional disorder.”   According to Dr. Mantell, such a disorder distorts a person's ability to perceive events.   In particular, a person with such a disorder has a disturbed way of thinking of events including false beliefs about subjects and an exaggerated fear of harm.

Although aware of Dr. Mantell's recent report and diagnosis, Attorney D'Ambrosio did not cross examine the mother on it, or seek to impeach the mother's testimony by producing Dr. Mantell to testify at the criminal trial.   Instead, she filed a motion, citing no authority, to have the criminal trial court order the mother to undergo a competency evaluation, which the trial court denied.   After that motion was denied, Attorney D'Ambrosio did not believe that she had any other possible legal avenues available to her to seek to introduce Dr. Mantell's findings into evidence to impeach the mother's credibility, and therefore did not take any additional steps to introduce this information at trial.   The respondent's counsel admitted during oral argument that had she had the report at trial, she would have been required to turn it over to the petitioner as exculpatory evidence.   Attorney D'Ambrosio had no strategic reason for failing to seek to impeach the mother's testimony with Dr. Mantell's findings, and the trial court did not preclude her from doing so when it denied her motion to have the mother independently evaluated for competency.

Attorney D'Ambrosio was aware that prior to the petitioner's arrest, the department's permanency plan was to reunite the petitioner with his two children, M. and A., but did not attempt to utilize this information at trial to impeach the mother, even though it was consistent with her theory of defense that the mother had motives to fabricate her testimony.

Overall, Attorney D'Ambrosio's testimony at the habeas trial was concerning, selective and defensive.   At one point she refused to accept petitioner's counsel's representations of matters that occurred in the criminal trial and were recorded unless she read the record herself.   She agreed to do so in the days between her testimonies but upon her return to court, and despite being given a copy of the criminal trial transcript, she failed to read it.   Later, she moved to quash a subpoena served upon her by the petitioner, even though she knew that her testimony at the habeas trial was not yet completed and she was in the middle of her cross examination.

The petitioner's expert, Attorney Michael Sheehan, testified credibly and convincingly in great detail over three days at the habeas trial that Attorney D'Ambrosio failed to develop an adequate theory of defense for the petitioner.   Attorney Sheehan further testified that Attorney D'Ambrosio failed to pursue discoverable information, and was unsuccessful in utilizing information in available records of M. and A. that she gained access to as a result of representing the petitioner in prior juvenile court proceedings.

The Criminal Trial

Jury selection began in the criminal trial on December 1, 2004.   At the criminal trial, the state presented evidence from the victim, his mother, Mary Elizabeth Hopkins, the victim's therapist at the Stetson School, Jacqueline Ortiz, a Waterbury police department detective, and Toure Diggs, a department case worker.

The victim testified that he had a bad relationship with the petitioner who verbally and physically assaulted him.   He also testified about the sexual assaults that occurred in his mother's home in the winter of 1998–1999, the one occurring in the bathroom as well as approximately three times when he slept on the couch and would wake up seeing the petitioner running from the room half naked pulling up his pants.   At these times, the victim testified that his clothes would sometimes be off and his face and anus would hurt.   He did not tell his mother about the bathroom incident because he was afraid of the petitioner, but did tell her about the evening events.   The victim also testified that he was at the Stetson School, where he received therapy, and about his disclosure of the petitioner's sexual assault to his mother and therapist during such a session.

Attorney D'Ambrosio's cross examination of the victim was extremely short and limited.   She limited her questions to his mother's failure to protect him, and take him to the hospital after the assault.   She did not ask the victim why he was at the Stetson School, whether he knew that it was the petitioner who notified the authorities of the allegation that the victim had sexually abused M., which resulted in his residing at the Stetson School, that his mother's visits decreased after his disclosure of the sexual assault, the differences in his reports of the abuse or his delayed disclosure.

The state introduced the testimony of the victim's mother, to corroborate the victim's account of the 1998–1999 sexual assault, the victim's disclosure of the event, and how the petitioner treated the victim differently than his children.   She testified on direct examination that she was “on probation” and had no agreement with the state.

The cross examination of the mother by Attorney D'Ambrosio was very short and limited to the mother's failure to take the victim to the hospital as Dr. Shaban had directed immediately after the assault, and her receipt of money on A.'s behalf from a Wyoming settlement that she invested in the house in Waterbury.   Although Attorney D'Ambrosio testified at the habeas trial that this payment to A. was critical to her defense theory—to show that the mother had a motive to fabricate to keep this money from the petitioner—the few questions asked of the mother on cross examination about this matter were confusing and did not establish the underlying facts to establish such a motive.

Hopkins testified on direct examination that she was the victim's therapist at the Stetson School, and indicated she was a “sex offender specialist.”   As the victim's therapist, she explored whether he was sexually abused, and testified concerning the session in February 2003 date with the mother present by phone in which the victim described the petitioner as “a sexual predator.”   At the next therapy session, on February 27, 2003, the victim's mother asked the victim, “were you sexually abused by Cecil?” to which the victim responded he would respond in writing.   The victim wrote:  “x flashe[d] me and tried to stick his penis up my butt.”   Hopkins further testified that the victim told her that he thought he would get the belt but “got a penis in my butt.”   Hopkins noticed changes in the victim after the disclosure, in that he was less angry and had less behavioral issues.

On cross examination, Hopkins indicated that the victim may have had calls to his mother prior to the disclosure outside of therapy and was allowed to testify that it was the department that caused the victim to be at the Stetson School.   Hopkins was not asked to elaborate as to why the victim was at the Stetson School or what types of children were treated there.

The state also offered the testimony of the department social worker, Toure Diggs, who testified that there was an entry in the victim's department file as to a conversation between the mother and Dr. Shaban regarding her suspicion that the victim had been abused.   The entry in the file indicates that the mother called Dr. Shaban on February 22, 1999, and informed him that she was concerned that one of her children had been sexually assaulted.   Dr. Shaban did not report the allegation to department at that time, but reported it when contacted by the department during its investigation in February 2003.

The defense's case consisted of two witnesses:  M. and the petitioner.   M. testified that he did not see the petitioner take the victim to the bathroom on the day of the assault, and that he never saw the petitioner assault the victim.   The petitioner denied the allegations of the sexual assault and testified that he believed the victim fabricated the allegations because it was the petitioner that made a report to the department.   The reason for the report—that the victim assaulted M.—was not disclosed to the jury.

Attorney D'Ambrosio attempted to ask the petitioner questions regarding the mother's motives for testifying against the petitioner.   The state objected and the court asked Attorney D'Ambrosio why she did not first ask the mother about these matters during her cross examination to lay a proper foundation for impeachment evidence.   However, the court allowed some leeway despite Attorney D'Ambrosio's failure to properly question the mother as to her motives, and allowed the petitioner to explain that he sought child support from the mother and that she was incarcerated for failure to pay child support.   Attorney D'Ambrosio asked the petitioner about A.'s settlement funds, but these questions were unclear, and as a result, the testimony was confusing.

During its closing argument, the state emphasized the testimony of the mother as important corroboration for the victim's allegations, both as to her eyewitness account of witnessing the petitioner and the victim coming out of the bathroom pulling up their pants and hearing the petitioner reprimand the victim not to say anything, and as to the victim's disclosure during the family therapy sessions at the Stetson School.

Attorney D'Ambrosio's closing argument focused on the mother's failure to follow Dr. Shaban's directive to have the victim examined at the hospital immediately after the assault and that Dr. Shaban did not take her claim seriously.   She attacked the mother's motives for testifying against the petitioner and in particular, that she failed to pay child support and was incarcerated for failing to pay child support, that the victim was in the department's care because of an unspecified complaint by the petitioner and that A.'s money was invested in the Waterbury house.

Additional facts are discussed below in connection with particular claims.

STANDARDS

“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).”  (Citations omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

The petitioner has the burden to establish 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), citing Strickland v. Washington, supra, 466 U.S. 694.

“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.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.  “It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, the 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 the ‘counsel’ guaranteed by the 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).

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.   However, this presumption is rebuttable.  Sanders v. Commissioner, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).  “In determining whether the presumption should apply ․ acts of ineffective assistance in the same matter may be considered in making that determination.”  Id.

Under the second prong of the test, the prejudice prong, the petitioner must show that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”  (Internal quotation marks omitted.)  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

Ultimately, “[t]he 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.

DISCUSSION

The petitioner asserts that Attorney D'Ambrosio's conduct was ineffective in the following ways:  (1) she failed to make an offer of proof as to why the victim's sexual conduct should have been admissible under General Statutes § 54–86f;  (2) she failed to properly cross examine, impeach and otherwise challenge testimony of the victim;  (3) she failed to cross examine, impeach and otherwise challenge the testimony of Mary Elizabeth Hopkins;  and (4) she failed to cross examine, impeach and otherwise challenge the testimony of the victim's mother including presenting the testimony of Debra Kennedy, the foster mother and Dr. David Mantell.   Each of these claims is discussed in detail below.

1. Failure to Make an Offer of Proof Regarding the Victim's Sexual Conduct

The petitioner claims that Attorney D'Ambrosio's conduct was deficient because she failed to seek to introduce evidence that the victim had sexually abused his younger brother, M. In particular, he claims that such information would have been relevant to petitioner's defense and that Attorney D'Ambrosio had access to information that would have supported a legally sufficient offer of proof under State v. Rolon, 257 Conn. 156, 183–84, 777 A.2d 604 (2001).   The respondent argues that had counsel attempted to offer such evidence during the trial, the admissibility of such evidence was in the trial court's discretion and “there would have been severe difficulties in getting the evidence admitted by the court and believed by the jury.”   The court agrees with the petitioner that such evidence was relevant to the defense, available to petitioner's counsel to make a legally sufficient offer of proof and that it is reasonably probable that the trial court would have admitted such evidence at the trial.   The court also finds that had such evidence been introduced at the criminal trial, it is reasonably probable that the outcome of the trial would have been different, and therefore the petitioner has proved that he was prejudiced.

As to this claim the court finds the following additional facts.

On December 8, 2004, prior to trial, the trial court heard argument on the state's motion in limine, in which it sought a prior ruling under the rape shield statute, as to evidence of (1) prior sexual abuse of the victim perpetrated by other individuals;  and (2) allegations of sexual abuse or sexually reactive conduct by the victim.

As to the first part of the state's motion, allegations of sexual abuse against the victim, the state sought to preclude it and the petitioner sought to introduce it.   In particular, Attorney D'Ambrosio sought to introduce evidence that the victim's older brother, F., had sexually abused him prior to the events involving the petitioner.   Certain of Attorney D'Ambrosio's arguments in support of this evidence were nonsensical and it is evident from her testimony here, and from the trial court record, that she did not understand the law on this issue.   Although she was familiar with the rape shield statute, she was not familiar with the cases interpreting the statute that require the proponent of such evidence to make a specific offer of proof to seek to introduce evidence of sexual conduct involving the victim.  State v. Rolon, supra, 257 Conn. 183–84.   Trial counsel failed to make a sufficient proffer and as a result, the trial court granted the state's motion in limine to preclude evidence of prior sexual abuse perpetrated on the victim “absent a more detailed proffer.”

As to the second part of the state's motion, conduct by the victim against others (his younger brother, M.), the state indicated that it may seek to introduce such evidence to establish sexually reactive conduct on the part of the victim.   At first, Attorney D'Ambrosio objected to the introduction of such evidence, and then said she did not object as long as such evidence came in through an expert.   Attorney D'Ambrosio indicated that she may seek to introduce such testimony as a defense to show the victim's motive for accusing the petitioner of sexual abuse.   The court withheld decision on this issue and ordered the parties to alert the court prior to the introduction of evidence of sexual conduct by or against the victim so that it could consider the matter outside the presence of the jury.

At no time after the court's pretrial rulings did Attorney D'Ambrosio attempt to make an offer of proof regarding evidence that the victim sexually assaulted M. and was sent to the Stetson School, an institution for juvenile youthful offenders, as a result.   Attorney D'Ambrosio was aware, or should have been aware from existing documents she had available to her, that M. claimed that the victim had sexually assaulted him in 2000, and as a result, the victim was sent to the Stetson School for treatment.   She also knew that it was the petitioner that reported the victim's conduct to the department, after the mother failed to do so.   Such information was available to trial counsel through her client and through records of the department and the juvenile court in M.'s neglect proceedings.

During her cross examination of the victim, and without warning to the trial court as it had expressly requested, Attorney D'Ambrosio asked the victim if he “had sex” with his older brother, F. The state objected and the court excused the jury.   When asked by the trial court why she did not alert it prior to asking the question in accordance with its prior ruling, Attorney D'Ambrosio stated her view that the sexual act between the brothers was “consensual,” and not rape, and therefore, did not fall within the ambit of the rape shield law or the court's prior ruling on the issue.   The trial court indicated that such conduct could not be considered “consensual” and again explained the nature of a legally sufficient proffer under State v. Rolon, supra, 257 Conn. 156.   Because the petitioner had failed to make a proper offer of proof, the court precluded the testimony and then gave the jury a limiting instruction.

Neither the state nor the defense sought to introduce evidence that the victim had sexually abused M., or why the victim was confined to the Stetson School.   Although the trial court had left the matter open pending an offer of proof, Attorney D'Ambrosio did not attempt to introduce this evidence or make a proper proffer.   The reason she did not do so was that she incorrectly believed that the trial court had precluded such evidence, when in fact the trial court had left the issue open pending a proper offer of proof, which was never forthcoming.   There was no strategic reason for her failure to pursue this evidence, but rather only her incorrect interpretation of the court's rulings.⁵

In order to establish his claim that his counsel was ineffective for failing to present evidence that the victim sexually assaulted his younger brother, M., the petitioner must prove that Attorney D'Ambrosio could have made a legally sufficient proffer under State v. Rolon, supra, 257 Conn. 156, and that had she done so, the court would likely have admitted the evidence and that the failure to introduce such evidence prejudiced him.

General Statutes § 54–86f generally precludes evidence of the sexual conduct of a victim in a prosecution of sexual assault unless one of four exceptions are established, and after a hearing is held by the court in which an offer of proof is made by the proponent of the evidence.   In this case, the petitioner claims that evidence of the victim sexually abusing M. was relevant under the fourth exception in the statute.  General Statutes § 54–86f provides in relevant part:  “In any prosecution for sexual assault under sections 53a–70, 53a–70a, and 53a–71 to 53a–73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is ․ (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant's constitutional rights ․ Evidence [admissible under one of these exceptions] shall be admissible only after a hearing on the motion to offer such evidence continuing an offer of proof.”

“Whenever the rape shield statute's preclusion of prior sexual conduct is invoked, a question of relevancy arises.   If the evidence is probative, the statute's protection yields to constitutional rights that assure a full and fair defense ․ If the defendant's offer of proof is sufficient to show relevancy, and that the evidence is more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial ․ When the trial court excludes defense evidence that provides the defendant with a basis for cross examination of the state's witness, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim of denial of the right to confrontation and to present a defense.”  State v. James, supra, 291 Conn. 823–24, quoting State v. Rolon, supra, 257 Conn. 176–77.   As an appropriate and potentially vital function of cross examination, exposure of a witness' motive, interest, bias or prejudice may not be unduly restricted.  Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974);  State v. Christian, 267 Conn. 710, 748, 841 A.2d 1158 (2004);  State v. DeJesus, 270 Conn. 826, 835, 856 A.2d 345 (2004).

“A clear statement of the defendant's theory of relevance is all important in determining whether the evidence is offered for a permissible purpose.”   (Internal quotation marks omitted.)  State v. James, supra, 291 Conn. 825.   “ ‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue ․ One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable ․ Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter ․ In considering whether evidence was sufficiently relevant to fall under one of the exceptions enumerated in § 54–86f, we have drawn a distinction between, on the one hand, evidence that is relevant to establish some portion of the theory of defense or rebut some portion of the state's case, which is admissible if the court determines that the probative value of the evidence outweighs its prejudicial impact on the victim, and, on the other hand, evidence that is offered as an impermissible attempt to establish the victim's general unchaste character as prohibited by [§ 54–86f]’ ․ State v. Smith, 280 Conn. 285, 295–97, 907 A.2d 73 (2006).”  State v. Crespo, 303 Conn. 589, 603, 35 A.3d 243 (2012).

Evidence is relevant if it shows that the witness was biased or had a motive to fabricate evidence.  State v. DeJesus, supra, 270 Conn. 840.   In DeJesus, the Supreme Court held that evidence that a sexual assault complainant had engaged in prior acts of prostitution was admissible pursuant to General Statutes § 54–86f(4) because it was relevant to the theory of defense that the sexual intercourse was an act of prostitution, and to show that the complainant had a motive to fabricate the allegations because she received less money than she had requested from the defendant.  State v. DeJesus, supra, 270 Conn. 839–40.   In State v. Adorno, 121 Conn.App. 534, 545–46, 996 A.2d 746, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010), the Appellate Court held that evidence that a minor sexual complainant had a sexual relationship with her boyfriend was admissible pursuant to § 54–86f(4) because it showed the complainant had a motive to fabricate the sexual assault in order to conceal this sexual relationship from her parents.  “[A]ny limitation on the impeachment of a key government witness is subject to the most rigorous appellate review.”  State v. Colton, 227 Conn. 231, 250, 630 A.2d 577 (1993), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996).

In State v. Rolon, the Supreme Court established that the offer of proof to introduce such evidence must include the following elements:  “(1) that the prior acts ⁶ clearly occurred;  (2) that the acts closely resembled those of the present case;  (3) that the prior act is clearly relevant to a material issue;  (4) that the evidence is necessary to [the] defendant's case;  and (5) that the probative value of the evidence outweighs its prejudicial effect.”   State v. Rolon, supra, 257 Conn. 183–84.

In Rolon, the court held that the trial court improperly prevented the defendant, who had been accused of sexually abusing his granddaughter, from presenting evidence of the victim's prior sexual abuse.  State v. Rolon, supra, 257 Conn. 627.   The court held:  “Without that evidence, the defendant was unable to elicit testimony on an issue critical to his defense or to prevent evidence capable of creating a reasonable doubt in the minds of the jury.   Specifically, the defendant was unable to prove that there was an alternative source not only for the victim's sexual knowledge, but also for the behavior that the state's expert referred to as common to child sexual abuse victims.”  (Internal quotation marks omitted.)  Id., 617–18.

According to the petitioner's expert, Attorney Michael Sheehan, evidence of the victim abusing M. was relevant to prove that the victim had motives to falsely implicate the petitioner.   In particular, the omitted evidence would have provided an alternative explanation for the victim's allegations against the petitioner.   As in Rolon, the state argued in the petitioner's case that a child would not make the allegations of sexual abuse unless they were true because the victim had nothing to gain from sharing this information.   Attorney Sheehan testified that the omitted evidence showed that the victim did in fact have something to gain by making the allegations against the petitioner, including an explanation for his own sexually abusive behavior to appease his guardians at the Stetson School.   Attorney Sheehan testified that Attorney D'Ambrosio should have used this evidence to present the theory that the victim was mistaken in that he was socially conditioned by his mother and the administrators at Stetson School into making an accusation against the petitioner.   Attorney Sheehan also testified that Attorney D'Ambrosio's proffer was deficient to get past the first stage in Rolon as to the rape shield statute in light of all of the information that she had.   Attorney D'Ambrosio never made a record to show the similarity of the abuse of M. by the victim and that by the petitioner toward the victim.   Attorney Sheehan testified that the timeline of events, that is the victim's disclosure, would have been a critical part of making the rape shield statute argument.

Attorney Sheehan acknowledged that providing the jury with this information regarding the victim's sexual offender status could be a double edged sword, because the jury could also believe that the victim learned this behavior from the petitioner because the petitioner abused him.   However, Attorney Sheehan stressed that in this case such evidence was critical to undermine the victim's credibility and provide an alternative defense theory, which when combined with the other evidence that did not come out at trial, such as the victim's mother's agenda, would have provided a reasonable defense for the petitioner.   The state offered no expert witness to challenge Attorney Sheehan's opinions, and the court found his opinions credible and convincing.

As to the particular evidence that was available to support an offer of proof under State v. Rolon, supra, counsel had available to her, through her representation of the petitioner in the neglect proceedings involving M., a number of records as well as other evidence, to substantiate such a claim.   Such evidence was introduced as evidence in the habeas trial.

Although the records were confidential by statute, they were accessible to the petitioner's counsel due to her representation of him as M.'s father in the neglect proceedings and to the prosecutor.   See General Statutes §§ 17a–28(g)(7),⁷ 46b–124(b),⁸ 46b–124(h), 46b–124(i).⁹  Trial counsel had a number of avenues available to her, which she did not utilize, to seek to overcome the confidentiality bar in order to use such documents in the criminal case, including discovery, subpoenas and court orders by the juvenile or criminal courts.   See, e.g., General Statutes § 46b–124(b) (allowing disclosure of confidential juvenile court records upon order of the superior court);  Practice Book § 40–11 (“upon written request by a defendant filed in accordance with section 41–5 and without requiring any order of the judicial authority, the prosecutorial authority ․ shall promptly ․ disclose in writing the existence of, provide photocopies of, and allow the defendant in accordance with Section 40–7, to inspect, copy ․ (1) exculpatory information or materials;  (2) any ․ documents within the possession, custody or control of any governmental agency ․ which are material to the preparation of the defense ․” [emphasis added] );  State v. Farah, 126 Conn.App. 437, 443, 13 A.3d 1108, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011) (subpoena to trial court);  State v. McClelland, 113 Conn.App. 142, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009) (discovery).   In seeking such records, through discovery, subpoena, or court order, trial counsel was in a unique position to make offers of proof necessary under Rolon or to seek in camera review of the records under State v. Esposito, supra, 193 Conn. 166, because she herself had access to the records through her participation in the neglect proceedings involving the victim's two brothers, and therefore knew or should have known what they contained.

The court finds that Attorney D'Ambrosio had information available to her to make a legally sufficient proffer under State v. Rolon, supra, 257 Conn. 183–84.   In particular, the available information and records established that in 2000, M. accused the victim of sexual assault by anally penetrating him, that M. told the petitioner about the assault, that the petitioner informed the department, that an investigation occurred and that as a result, the victim was compelled to attend the Stetson School, which is an institution that specializes in treating juvenile sexual offenders.   He was residing at the Stetson School in February 2003, when he made the disclosure regarding the petitioner sexually assaulting him to his mother and therapist.

Such evidence was relevant to establish the petitioner's defense at trial that the victim had a significant motive to fabricate the allegations against the petitioner, including that the petitioner was the person who had reported his conduct to the authorities, and was therefore responsible for his confinement at the Stetson School.   In addition, such information would have been relevant to additional defense theories that could have been presented by Attorney D'Ambrosio, including that the victim was motivated to fabricate allegations against the petitioner as a basis to explain his own sexual abuse of his brother M. Additionally, the information was relevant to provide a clearer and fuller picture of why the victim was at the Stetson School.   Although there was testimony during the trial that the victim was at the Stetson School, it was not explained what type of facility that was or why the petitioner was there, leaving the incorrect impression that he was in therapy due to the abuse by the petitioner.   The probative value of such evidence to the petitioner's defense of the charges would have outweighed the potential prejudice to the victim.

The court finds that such an offer of proof setting forth the above facts and theories of the defense, had it been made, would have been deemed by the trial court to be legally sufficient and the evidence relevant to the petitioner's defense, and therefore, would have been allowed.   See, e.g., State v. DeJesus, supra, 270 Conn. 826;  State v. Ramirez, supra, 79 Conn.App. 572;  State v. Rolon, supra, 257 Conn. 156;  State v. Horrocks, supra, 57 Conn.App. 32;  Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988).

The court finds Attorney D'Ambrosio's conduct in failing to pursue the introduction of this evidence by making a proper offer of proof based on information that was available to her fell below an objective standard of reasonableness.

As to prejudice, the petitioner must show that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”  (Internal quotation marks omitted.)  Michael T. v. Commissioner of Correction, supra, 307 Conn. 101.   To establish prejudice, the petitioner must prove that “there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal ․ In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction ․ Where new evidence undermines the confidence in the result reached such that it can be said that an injustice was likely done and that it is probable that the new trial would produce a different result, relief must be available through habeas corpus proceedings.”  (Citations omitted;  internal quotation marks omitted.)   Id., 102.

The court finds that counsel's deficient performance in failing to make a legally sufficient offer of proof as to the victim's sexual conduct prejudiced the petitioner in that there was a reasonable probability that the trial court would have allowed such evidence and as a result the outcome of the trial would have been different.   The state's case against the petitioner involved four-year-old allegations, not previously reported to authorities by the minor victim or his mother.   The state's case was dependent primarily upon the credibility of the victim and his mother, the state's key corroborating witness.   The victim's testimony against the petitioner was critical to the state's case because he was the only person other than the petitioner, who was present in the bathroom or living room, when the events occurred.   Thus, challenging the reliability of the victim's testimony and demonstrating the victim's motives to fabricate the events was critical to the petitioner's overall defense to show that the victim and his mother fabricated the charges against the petitioner.

Accordingly, the court finds that the petitioner has met his burden to establish prejudice as to this claim.

2. Failure to Properly Cross Examine or Impeach the Victim

The petitioner next claims that trial counsel was ineffective because she failed to adequately cross examine or impeach the victim.   Much of the petitioner's argument on this issue involves his speculation as to what the victim would have said had he been asked certain questions on cross examination.   However, the victim did not testify at the habeas trial and therefore, the court cannot make findings concerning his testimony.  “The failure of the petitioner to offer evidence as to what a witness would have testified is fatal to his claim.”  Lambert v. Commissioner of Correction, 100 Conn.App. 325, 327, 918 A.2d 281, cert. denied, 282 Conn. 915, 924 A.2d 138 (2007);  see Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508 (1999) (same), cert. denied, 1248 Conn. 905, 731 A.2d 309 (1999).   See also 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” [internal quotation marks omitted] ).

Accordingly, the petitioner has failed to prove this claim related to the cross examination of the victim, and this claim is, therefore, denied.

3. Failure to Properly Cross Examine or Impeach the Testimony of Mary Elizabeth Hopkins

Next, the petitioner claims that trial counsel's conduct was deficient because she failed to adequately cross examine, impeach or otherwise challenge the testimony of Mary Elizabeth Hopkins, the victim's therapist at the Stetson School, regarding the nature of the Stetson School as an institution for juvenile sexual offenders and why the victim was confined there, and when the victim first reported the abuse claim.

As to the first two issues—the nature of the school and why the victim was there—they relate to the victim's sexual conduct and as such would be subject to the rape shield statute, General Statute § 54–86f, and would require trial counsel to make the necessary offer of proof under State v. Rolon, supra, 257 Conn. 156.   The court has addressed these issues in favor of the petitioner, supra.   The court adds that such testimony should have been pursued on cross examination because the state's direct examination of Hopkins left a false and incomplete impression that the victim was at the school to receive therapy for having been sexually assaulted by the petitioner.   Although Hopkins did not testify at the habeas trial, the court finds that as to the issue of the nature of the school and the reason the victim was confined there cannot be disputed.

During her cross examination of Hopkins, it appears that trial counsel attempted to ask her a question regarding prior sexual conduct involving the victim.   The question was objected to and trial counsel “withdrew it.”   She did not attempt to make any showing under the rape shield statute, § 54–86f supra, or despite the state having opened the door to such a proffer.   Thus, she did not question Hopkins regarding the nature of the school, that it was a school for juvenile sex offenders, or that the victim was confined there because he was alleged to have abused his brother.   For the reasons stated above, counsel's failure to do so was deficient and prejudiced the petitioner.

As to the issue that trial counsel failed to properly cross examine Hopkins regarding the mother's report to her own therapist of the victim's disclosure, the court denies this claim.   Hopkins did not testify at the habeas trial and there is no evidence that she was even aware of the mother's prior report to Kennedy.   Also, since she did not testify here, what she may or may not have said is speculative at best.  “The failure of the petitioner to offer evidence as to what a witness would have testified is fatal to his claim.”  Lambert v. Commissioner of Correction, supra, 100 Conn.App. 327;  see Nieves v. Commissioner of Correction, supra, 51 Conn.App. 623 (same).   See also Crawford v. Commissioner, supra, 285 Conn. 599 (“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” [internal quotation marks omitted] ).

Thus, this claim is granted in part and denied in part.

4. Failure to Properly Cross Examine or Impeach the Mother

The petitioner claims that Attorney D'Ambrosio's conduct was deficient because she failed to properly cross examine the victim's mother on a number of matters and impeach her testimony with the testimony of Dr. Mantell, the foster mother and Debra Kennedy, and that these deficiencies prejudiced the petitioner.   The state claims that Attorney D'Ambrosio's performance was not deficient, and the petitioner was not prejudiced because the victim's testimony was sufficient to obtain a conviction against the petitioner.   The court agrees with the petitioner that trial counsel's cross examination of the mother fell below the objective standard of reasonableness and that he was prejudiced thereby.

To satisfy the performance prong under Strickland, “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.’   “ Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458, quoting Strickland v. Washington, supra, 466 U.S. 687.  “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.”  Strickland v. Washington, supra, 466 U.S. 688–89.   “Counsel ․ has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.”  Id., 688.

“ ‘The primary interest secured by confrontation is the right to cross examination’ ․ State v. Lubesky, 195 Conn. 475, 481–82, 488 A.2d 1239 (1985).   As an appropriate and potentially vital function of cross examination, exposure of a witness' motive, interest, bias or prejudice may not be unduly restricted.  Davis v. Alaska, [supra, 415 U.S. 316];  State v. Christian, 267 Conn. 710, 748, 841 A.2d 1158 (2004).   Compliance with the constitutionally guaranteed right to cross examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness' reliability.  Davis v. Alaska, supra, 318;  State v. Reynolds, 264 Conn. 1, 59, 836 A.2d 224 (2003), cert. denied, [541 U.S. 908], 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).  ‘Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment.’  State v. Colton, [supra, 227 Conn. 249].   Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense.”  State v. DeJesus, supra, 270 Conn. 835.

Connecticut law recognizes the importance of impeachment evidence and allows a party's inquiry into facts showing bias, prejudice or interest as a matter of right.   See Conn.Code Evid. § 6–5;  State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969).  “Cross examination to elicit facts which tend to show motive, interest, bias or prejudice is a matter of right, and although the extent of such cross examination may often rest in the sound discretion of the court, a denial of the right, or its undue restriction, will constitute reversible error.”  State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959).   Any motive of a witness to depart from the truth may be pursued.  Id., 46–47.   Evidence of bias, prejudice interest is never considered collateral and may be accomplished through the introduction of extrinsic evidence in addition to examining a witness directly.  State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997);  State v. Chance, 236 Conn. 31, 58, 671 A.2d 323 (1996);  Fairbanks v. State, 143 Conn. 653, 657, 124 A.2d 893 (1956).

An attorney's line of questioning on examination of a witness generally is considered to be tactical in nature;  as such, courts do not in hindsight, second-guess counsel's trial strategy.  State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002).   This is because “cross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination.”  (Internal quotation marks omitted.)  State v. Clark, 170 Conn. 273, 287–88, 365 A.2d 1167 (1976).   However, like any claim of ineffective assistance of counsel, the petitioner may establish that an attorney's cross examination fell below an objective standard of reasonableness as to be considered deficient performance.   Duperry v. Solnit, 261 Conn. 309, 335–36, 803 A.2d 287 (2002).  “A number of courts have found deficient performance where ․ counsel failed to challenge the credibility of the prosecution's key witness.   See, e.g., ․ Nixon v. Newsome, 888 F.2d 112, 115 (11 Cir.1989) (finding deficient performance where counsel failed to confront the prosecution's star witness with inconsistent statements thus ‘sacrific[ing) an opportunity to weaken the star witness's inculpatory testimony’);  Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir.1987) (finding deficient performance where counsel failed to impeach an eyewitness with previous inconsistent identification testimony when ‘weakening [the witness's] testimony was the only plausible hope [the defendant] had for acquittal’).”  Higgins v. Renico, 470 F.3d 624, 633 (6th Cir.2006).

The court is mindful that in assessing trial counsel's performance, the habeas court is required to “recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Strickland v. Washington, supra, 466 U.S. 690.   In Strickland, the U.S. Supreme Court explained the presumption:  “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  Id., 694–95.   However, this presumption is rebuttable.   Sanders v. Commissioner, supra, 83 Conn.App. 551.  “In determining whether the presumption should apply ․ acts of ineffective assistance in the same matter may be considered in making that determination.”  Id.

Here, the court finds that the presumption has been rebutted due to the numerous acts of deficient conduct by trial counsel in this case.   In addition, the existence of the presumption assumes that trial counsel was exercising professional judgment based on trial tactics and strategy.   Here, the court finds that counsel's failure to properly cross examine or impeach the mother, as discussed below, was devoid of reasonable tactical or strategic decision making but rather, a result of her inexperience trying criminal cases (she had none), her lack of adequate knowledge of the law, including criminal procedure and evidence, and lack of knowledge and information regarding available facts and impeachment evidence and how to use such evidence to impeach a witness and further the petitioner's defenses.

Importantly, in the underlying criminal case, the mother was a key corroborating witness for the state.   She came upon the alleged incident between the petitioner and the victim in the bathroom, and was also a participant in the victim's disclosure.   It was clear during the petitioner's criminal trial that the state considered the mother to be an important witness to corroborate the victim's claims, and their closing arguments focused on the testimony she provided, as one of “two people who knew what happened.”   Therefore, it was critical for the defense to attempt to undermine the mother's credibility.   Moreover, proper impeachment of the mother was critical to the defense theory that the mother fabricated the allegations and urged the victim to do so.

In particular, Attorney D'Ambrosio's conduct was deficient in failing to impeach or cross examine the mother regarding the following:

a. Dr. Mantell's Diagnosis of the Mother

In connection with the neglect proceedings of A., the mother was ordered to undergo a psychological evaluation.   Dr. Mantell conducted the evaluation of the mother and diagnosed her with mental health issues that could impact her ability to recall and perceive events, including “paranoid delusional disorder.”   Dr. Mantell conducted his evaluation of the mother on September 22, 2004, and issued his report on October 4, 2004, shortly before the petitioner's criminal trial began.   Attorney D'Ambrosio did not cross examine the mother on Dr. Mantell's conclusions, or seek to impeach her testimony with relevant portions of the report or his testimony.

“The capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross examination.   If as a result of a mental condition such capacity has been substantially diminished, evidence of that condition before, at or after the occurrence and at the time of trial, is ordinarily admissible for use by the trier in passing on the credibility of the witness ․ Thus, in order for evidence of a witness' psychiatric condition to be admissible for impeachment purposes, there must be a showing that the condition substantially affected the witness' ability to observe, recall or narrate events at issue in the trial.”  (Citation omitted;  internal quotation marks omitted.)  State v. Cardinal, 194 Conn. 114, 118–19, 478 A.2d 610 (1984).

At the habeas trial, Dr. Mantell testified that paranoid delusional disorder is a condition in which the party has a disturbed way of thinking that involves continuous false beliefs about particular subjects that are of a paranoid nature.   Paranoid delusional disorder distorts an individual's ability to perceive events, and such an individual is subject to unreasonable conclusions based on minimal evidence.   Dr. Mantell indicated that the paranoid thoughts led the mother to have an exaggerated fear of harm, and the delusions meant that she had false beliefs that events had happened.

Attorney D'Ambrosio had a copy of Dr. Mantell's psychological evaluation of the mother from the juvenile court file, and attempted to use that record to seek a psychiatric evaluation of the mother in the criminal trial on the grounds that the evaluation raised sufficient question regarding her competency.   The criminal court denied Attorney D'Ambrosio's request for a psychiatric evaluation of the mother based on the report, however it did not preclude the petitioner from using the report or findings in another way at trial to impeach the mother.   However, trial counsel did not seek to admit Dr. Mantell's findings at trial to impeach the mother.   At the habeas trial, Attorney D'Ambrosio testified that her failure to use Dr. Mantell's findings to cross examine or impeach the mother was not a strategic decision, but resulted from her incorrect belief that she was barred from doing so based on the court's ruling denying the requested competency evaluation.

Dr. Mantell's report was a critical piece of evidence for the defense because the evaluation speaks to the mother's testimonial capacity and was conducted shortly before she testified at the petitioner's criminal trial.   Pursuant to the circumstances in this case, the jury needed to know whether the mother was an accurate reporter of the events that allegedly transpired.   Further, notwithstanding the respondent's claims regarding the admissibility and import of this document, the respondent's counsel acknowledged at oral argument that had the prosecution had a copy of Dr. Mantell's report or had Attorney D'Ambrosio requested it through discovery, the state would have had to turn it over as exculpatory evidence.   The court finds that it is probable that the trial court would have allowed Dr. Mantell's diagnosis of the mother, a key prosecution witness, in some form, during the trial to impeach the mother.¹⁰

The respondent's reliance on State v. Cardinal, supra, 194 Conn. 114, is misplaced.   In Cardinal, the court disallowed the evidence of the witness' psychiatric history for impeachment because there was no evidence that the witness' mental condition impacted his “capacity to observe remember, or narrate” events.  Id., 119.   Here, Dr. Mantell's diagnosis that the mother had “paranoid delusional disorder” directly impacted her ability to comprehend, know and accurately relay events.

Pursuant to the foregoing, the court finds that Dr. Mantell's report and certain of the information contained therein would have been extremely helpful to the defense for cross examination and impeachment purposes.   Such evidence, if produced, would have undermined the key corroborating witness' testimonial capacity, and bolstered the theory of defense that the allegations against the petitioner were fabricated.   Further, Attorney D'Ambrosio admitted that the omission of this evidence was due to her incorrect belief that she was barred from introducing it, and was not strategic in nature.   Accordingly, the court finds that Attorney D'Ambrosio's failure to cross examine the mother on Dr. Mantell's report, or seek to impeach her testimony with the report or his testimony, constituted deficient performance.

The court also finds that Attorney D'Ambrosio's deficient performance prejudiced the petitioner.   The mother was the key corroborating witness for the state.   The omitted evidence regarding her diagnosis for paranoid delusional disorder speaks to her testimonial capacity, specifically her ability to recall and perceive events, which was crucial given the circumstances of the petitioner's case.   As a result, the court finds that there is a reasonable probability that the outcome of the proceedings would have been different had it not been for Attorney D'Ambrosio's deficient performance.   Thus, the petition is granted as to this claim.

b. The Foster Mother 11

The foster mother for M. and A. testified at the habeas trial that the mother frequently encouraged the children to make sexual assault allegations against the petitioner.   The boys always refused to do so, indicating that their father never touched them in a sexual manner.   The mother also routinely mentioned that the petitioner sexually abused the children in the foster mother's presence.   The foster mother also testified that when the mother visited the boys, she often indicated that she would like to see the petitioner “rot in jail.”   The foster mother was not called to testify at the criminal trial but was available to be interviewed and to testify at the petitioner's criminal case.   The court finds the foster mother to be a credible, neutral witness.   Bryant v. Commissioner of Correction, 290 Conn. 502, 518, 964 A.2d 1186 (2009) (“[I]n circumstances that largely involve a credibility contest, as did the petitioner's trial, the testimony of neutral, disinterested witnesses is exceedingly important”).

Attorney D'Ambrosio testified that she was aware of this information, but she did not interview the foster mother or introduce this evidence at the petitioner's criminal trial.   Attorney D'Ambrosio indicated that she assumed this information would be helpful to and consistent with the petitioner's theory of defense that the allegations against the petitioner were fabricated, and she did not know why she did not use it at trial.   Thus, there was no strategic or tactical reason for her failure to use this evidence at trial.

Pursuant to the foregoing, the court finds that Attorney D'Ambrosio's failure to use the foster mother's testimony to impeach the mother constitutes deficient performance.   The foster mother was a disinterested witness and her testimony would have been exceedingly important in determining the credibility of the mother's testimony against the petitioner.   Also, the foster mother's testimony would have helped to further support the defense's theory that the mother played a part in fabricating the allegations of sexual abuse against the petitioner.

That the testimony involved the mother's pressuring her other children to make false allegations of sexual abuse against the petitioner does not undermine the importance or relevance of such testimony, as the respondent claims.   Rather, it evinces the mother's willingness to take whatever measures necessary to harm the petitioner, undermines her credibility and supports the defense theory that she pressured the victim to make the allegations.¹²

Additionally, the court finds that Attorney D'Ambrosio's deficient performance prejudiced the petitioner.   The mother was the key corroborating witness for the state, and the foster mother's testimony indicating that the mother repeatedly requested her two sons to fabricate allegations of sexual abuse against the petitioner would have impeached her credibility in the petitioner's case and further supported the defense that the charges were fabricated.

As a result, the court finds that there is a reasonable probability that the outcome of the proceedings would have been different had it not been for Attorney D'Ambrosio's deficient performance.

Accordingly, the petition is granted as to this claim.

c. Debra Kennedy 13

At the criminal trial, the mother testified that on a number of occasions she urged the victim to tell her what happened after she witnessed victim and the petitioner exiting the bathroom in the winter of 1998–1999.   She testified that the victim first disclosed the sexual abuse by the petitioner at a family therapy session in late February 2007.   She participated by phone, and the victim and his therapist, Mary Elizabeth Hopkins, were together at the Stetson School.   The mother indicated that the victim called the petitioner a “sexual predator,” but that Hopkins did not hear it.   It is unclear, but probable, based on a review of the whole record, that this first statement by the victim that the petitioner was a “sexual predator” occurred at a family therapy session at the Stetson School on February 5, 2003.   Then on February 27, 2003, the victim explained his comment in writing:  “x flashe[d] me and tried to stick his penis up my butt.”

At the habeas trial, Debra Kennedy, the mother's therapist in 2002 and 2003, testified credibly that on February 5, 2003, Kennedy had a session with the mother in which the mother reported that one week prior she “was on the phone with [the victim] and he said to [her] that the father raped him when he was younger.   He also said that he was told not to tell or he would kill the children or the mother.   He said ‘A. knows everything but he won't talk.’   “ ¹⁴ Upon hearing this information, Kennedy reported it to the department by phone, and that call was documented by the department.   This information was available to trial counsel, and she was aware of this report.

The court finds Kennedy to be a credible, neutral witness.  “[I]n circumstances that largely involve a credibility contest, as did the petitioner's trial, the testimony of neutral, disinterested witnesses is exceedingly important ․ See also Pavel v. Hollins, [261 F.3d 210, 222–23 (2nd Cir.2001) ] (in ‘credibility contest,’ performance deficient, in part, because of failure to call neutral court-appointed mediator to support theory that mother manipulated children's testimony in effort to gain full custody) ․” Bryant v. Commissioner of Correction, supra, 290 Conn. 518.

Although trial counsel knew that the mother had made this prior report to Kennedy, she did not believe that it would be helpful at the criminal trial to undermine the state's theory that the victim's first report of the sexual abuse was February 27, 2003.¹⁵  She did not interview Kennedy or seek to use the report because she did not think it would be useful to have a second report of the abuse.

According to Attorney Sheehan, a reasonably competent attorney would have cross examined the mother regarding her prior inconsistent statement ¹⁶ as to when the victim first reported the allegations against the petitioner.   The report is evidence of a prior conversation between the victim and the mother regarding the allegations, which both had denied.   Attorney Sheehan noted that the information in Kennedy's report indicating that the mother first reported the disclosure on February 5, 2003, was important in light of Hopkin's and the mother's testimony indicating that the victim first disclosed the alleged abuse on February 27, 2003.   Attorney Sheehan also testified that even if the victim had denied making the earlier disclosure, the information in the report could have been useful to the defense's theory that the mother was delusional and fabricated the allegations.

The court rejects the respondent's claim that this information could not have been introduced at trial because Kennedy was the mother's therapist, and therefore a waiver of therapist privilege would have been required from the mother prior to the introduction of such evidence.   The respondent claims that it is unlikely that the mother would have waived such a privilege.   The respondent also claims that Kennedy's report to the department of the victim's disclosure is collateral.   The court disagrees.   This evidence regarding the date of the victim's first disclosure to the mother goes directly to her (and the victim's) credibility and is consistent with the petitioner's fabrication defense.   It is therefore not collateral.   Even if a waiver from the mother was necessary, and she refused to provide it, the trial court could have excluded her testimony in whole or in part.   Moreover, the crux of this evidence is the timing of the victim's disclosure to the mother which does not necessarily include any privileged information regarding the mother's therapy and treatment, and to the extent it or the department's report of the disclosure by Kennedy did include such privileged information, it could have been redacted.

Thus, the court finds that the petitioner has sustained his burden to prove that trial counsel's conduct was deficient.

The petitioner has also established prejudice as to this claim.   The state's case was dependent upon the credibility of the victim and his mother, the key corroborating witness.   At trial, the mother and the victim testified that the victim first reported the abuse on February 27, 2003, during a therapy session at the Stetson School.   Documented evidence by an unbiased reporter that the mother told her that the victim reported the abuse in late January 2003, or one week prior to her therapy session on February 5, 2003, would have been extremely helpful to impeach the mother's credibility and to support the petitioner's defense that the allegations were fabricated.   Such information would have likely been allowed by the trial court.   Compliance with the constitutionally guaranteed right to cross examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness' reliability.   See Davis v. Alaska, supra, 415 U.S. 318;  State v. Reynolds, 264 Conn. 1, 59, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).   Thus, had such information been introduced at trial there is a reasonable probability that the result of the trial would have been different.

Accordingly, the court finds that the petitioner has established this claim.

d. The Mother's Felony Conviction

The petitioner claims that trial counsel should have questioned the mother on cross examination regarding a recent felony conviction.   The court agrees.

On or about June 22, 2004, the mother was arrested and charged with violation of a protective order in violation of General Statutes § 53a–110b, and reckless endangerment in the first degree in violation of General Statutes § 53a–63.   The charges stemmed from the mother's violation of a full no contact protective order in favor of her former boyfriend that was put in place after she went to his residence and turned and left on the gas burners on the stove.   The mother pleaded guilty to the charge of violation of a protective order, a felony, on September 13, 2004, and received a sentence of three years, suspended, and three years' probation.   The reckless endangerment charge was nolled.

Thus, at the trial in December 2004, the mother was a convicted felon, a fact that was not disclosed to the jury.   On direct examination, the state did not disclose the fact that the mother was a convicted felon, but asked the mother if she was on probation and if she had received any promises from the state for her testimony.   Petitioner's counsel did not cross examine the mother regarding the fact that she had been convicted of a felony because she was not aware of it.   The mother's record was not disclosed to the jury, and trial counsel did no research or investigation as to the mother's criminal record.   Additionally, trial counsel did not seek to pursue the matter after the state presented misleading testimony regarding the mother being on “probation.”   There was no strategic or tactical reason for trial counsel's failure to question the mother regarding the conviction.

Evidence that the mother had a very recent felony conviction would have been relevant to her credibility as a witness and likely would have been allowed by the trial court, particularly since the state opened the door to such evidence.   See Conn.Code Evid. § 6–7;  General Statutes § 52–145;  State v. Dobson, 221 Conn. 128, 138, 602 A.2d 977 (1992) (“the prudent course [for a trial court faced with a decision whether to admit as evidence of credibility prior convictions for crimes that do not reflect on credibility], one that would diminish the prejudicial effect, would be to allow the defendant to mention that the witness was convicted of an unspecified crime carrying a penalty of more than one year, at a certain time and place”);  State v. Geyer, 194 Conn. 1, 16, 480 A.2d 489 (1984) (same);  State v. Marquez, 160 Conn. 47, 53, 273 A.2d 689 (1970) (conviction based on guilty plea).  “In certain cases another factor has been regarded as significant and that is the extent to which felony convictions have been used to discredit witnesses for the prosecution.   Where a case may turn upon the comparative credibility of the defendant and a prosecution witness whose criminal record has come before the trier, it has been thought that the picture presented is less distorted if the criminal background of the defendant is also made known.”  State v. Nardini, 187 Conn. 513, 527, 447 A.2d 396 (1983).

Evidence concerning a witness's prior felony convictions is routinely offered at trials, civil and criminal to undermine credibility, and routinely allowed.   See Conn.Code Evid. § 6–7 (evidence that witness was convicted of crime punishable by imprisonment of more than one year is admissible to impeach credibility);  see also Practice Book § 40–13 (requiring prosecuting authority to disclose to defendant any record of felony convictions of witnesses).

In habeas cases involving ineffective assistance claims where trial counsel failed to impeach a witness with a prior conviction, claims have been denied for a lack of prejudice because trial counsel impeached the witness in other ways.   See, e.g., Adorno v. Commissioner, 66 Conn.App. 179, 189–90, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001) (finding no prejudice resulted from trial counsel's failure to impeach witness regarding witness's prior tampering with evidence conviction where counsel impeached witness with several other drug convictions);  McEntyre v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 99–0423817–S (March 12, 2013) (denying claim for lack of prejudice where trial counsel attempted to impeach witness on other grounds, including eliciting testimony indicating witness had five prior convictions and that witness fabricated testimony to secure early release from prison).

The court finds that trial counsel's failure to cross examine the mother as to her recent criminal felony conviction was deficient.   Unlike the foregoing cases, here trial counsel did not impeach the mother in other ways.   In addition, trial counsel allowed the state to offer misleading testimony on direct examination that disclosed only that the mother was “on probation,” without any explanation as to what that meant.   Attorney D'Ambrosio failed to clarify on cross examine of the mother that she was on probation after having been convicted of a felony, even though such testimony is routinely pursued and allowed in criminal and civil trials.

In light of the mother's role as a key corroborating witness and the importance to the defense of undermining her credibility, the court finds that the petitioner has met his burden to establish that had such information been introduced at trial the result of the criminal trial would have been different and thus that he was prejudiced.

e. Custody of M. and A.

The petitioner claims that the trial counsel should have cross examined and impeached the mother regarding her knowledge that the department was considering placing M. and A. with the petitioner permanently and her motive to testify falsely to prevent the petitioner from obtaining custody of the two boys.

Evidence of an interest in the outcome of the case by way of a potential benefit or detriment is admissible to impeach a witness.  State v. Holley, 174 Conn. 22, 28, 381 A.2d 539 (1977).   To be relevant, the witness must have knowledge of the interest.  McQuillan v. Willimantic Electric Light Co., 70 Conn. 715, 719–20, 40 A. 928 (1898).

The court finds that the petitioner has established that the mother was aware that the department was developing a permanency plan to reunify the petitioner with his children, M. and A., and that she did not want the petitioner to have custody of the children.¹⁷  Allegations of sex abuse toward the victim and a conviction on such charges would inure to the mother's benefit as the department would not place the boys with a convicted sex offender or while such charges were pending.   Such testimony would have been consistent with her strategy to show that the mother had a motive to fabricate the allegations.   Thus, the court finds that the petitioner has met his burden to prove that trial counsel's conduct was deficient in failing to impeach the mother as to her loss of custody of her children to the petitioner.

The court also finds that the petitioner has met his burden to establish that had such information been introduced at trial the result of the criminal trial would have been different and thus that he was prejudiced.   As stated supra, impeaching the mother's credibility and demonstrating her motives to fabricate the allegations against the petitioner was critical to the defense of this case.   The permanency plan to give custody of M. and A. to the petitioner, with whom she was estranged, was being developed by the department in the months prior to the victim's disclosure, and was known to the mother.   Bringing this information to the jury's attention on cross examination of the mother was critical to testing her credibility.   Had trial counsel used this evidence to establish an important motive, the outcome of the trial may have been different.

f. Stetson School

The petitioner claims that the mother should have been questioned about the nature of the Stetson School, and that the victim was confined there due to the petitioner's report to the department that M. alleged that the victim sexually assaulted him, something she failed to do.   That report led to the victim being held at the Stetson School.   These issues relate to the victim's sexual conduct and as such would be subject to the rape shield statute, General Statute § 54–86f, and would require trial counsel to make the necessary offer of proof under State v. Rolon, supra, 257 Conn. 156.   The court has addressed these issues in favor of the petitioner, supra.   The same rationales and findings apply to this claim.

Thus, the court grants the petition as to this claim.

g. Other Claims

The court finds that the petitioner has failed to prove that trial counsel was deficient in failing to cross examine or impeach the mother on her ongoing drug use, child support issues, or visits to the victim.

Evidence of other crimes or bad acts is generally inadmissible to prove bad character or criminal tendencies of a person.   Conn.Code Evid. § 4–5(a).   Such evidence may be admitted to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity or an element or a crime, or to corroborate crucial prosecution testimony.   Conn.Code Evid. § 4–5(b).  The petitioner has failed to show how evidence of the mother's continued drug use was relevant in this case or that it was likely to be admitted by the trial court under § 4–5(b) of the Code of Evidence.   Accordingly, this claim is denied.

As to the petitioner's claim that trial counsel failed to impeach the mother regarding the fact that the petitioner had initiated child support proceedings against her, that her wages were garnished and that she was incarcerated for failure to pay child support, the court finds that the petitioner has failed to prove that he was prejudiced.   Evidence that the petitioner sought child support from the mother and was incarcerated for failing to pay support was introduced through the testimony of the petitioner.   Although trial counsel could have also cross examined the mother as to the child support dispute, the petitioner has failed to prove how additional testimony on this issue, through cross examination of the mother, has prejudiced him.   Accordingly, this claim is denied.

As to the mother's visits to the victim at the Stetson School, the court finds that the petitioner has failed to prove either prong of the Strickland test as to this claim.

5. Cumulative Prejudice

The petitioner claims that the court should weigh cumulatively all of trial counsel's deficient conduct in determining whether the petitioner was prejudiced.   The state asserts that our Supreme Court has rejected this claim.   The court agrees with Judge Bishop's analysis in Skakel v. Commissioner, Superior Court, judicial district of Tolland, Docket No. CV–10–4003762–S (October 23, 2013), that the Supreme and Appellate Courts have not directly addressed the precise issue in a habeas case as to whether or not the court can consider cumulative deficiencies in evaluating the prejudice prong under Strickland.   The court believes that if it had occasion to do so, the Supreme Court would agree with the majority of courts that have considered this issue and have found that Strickland requires courts to examine the aggregate impact of trial counsel's errors in assessing the second prong of Strickland.  Lindstadt v. Keane, 239 F.3d 191, 199 (2nd Cir.2001) ( “Strickland directs us to look at the ‘totality of the evidence before the judge or jury,’ keeping in mind that ‘[s]ome errors have ․ a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture ․’ Id., 695–96.   We therefore consider these errors in the aggregate”).¹⁸  Courts in other jurisdictions have adopted this approach.   See, e.g., Hooks v. Workman, 689 F.3d 1148, 1188 (10th Cir.2012) (using cumulative-prejudice analysis to “assess the aggregate impact of these numerous errors and decide whether they collectively so infected the trial with unfairness as to make the resulting conviction a denial of due process”);  Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir.2007) (noting “[w]e will address each aspect of Davis's performance the district court found deficient before considering whether Richards was cumulatively prejudiced thereby”);  Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir.2005) (finding Strickland allows court to consider cumulative effect of counsel's errors to find prejudice);  Harris By & Through Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir.1995) (noting “[w]e have previously recognized that “prejudice may result from the cumulative impact of multiple deficiencies”);  Kubat v. Thieret, 867 F.2d 351, 370 (7th Cir.1989) (indicating “errors” language from Strickland shows that “Strickland clearly allows the court to consider the cumulative effect of counsel's errors in determining whether a defendant was prejudiced”);  Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa.2012) (finding “[w]hen the failure of individual claims is grounded in lack of prejudice, however, then the cumulative prejudice from those individual claims may properly be assessed”);  State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012) (noting “we should look to the cumulative effect of counsel's errors to determine whether the defendant satisfied the prejudice prong of the Strickland test”);  Schofield v. Holsley, 642 S.E.2d 56, 60 n.1 (Ga.2007) (noting “[t]he Supreme Court of the United States [in Strickland ] held that it is the prejudice arising from ‘counsel's errors' that is constitutionally relevant, not that each individual error by counsel should be considered in a vacuum”);  Suggs v. State, 923 So.2d 419, 441 (Fla.2005) (conducting cumulative-error analysis);  State v. Thiel, 665 N.W.2d 305, 321 (Wis.2003) (holding “consensus [of federal circuit decisions] appears to hold that when a court finds numerous deficiencies in a counsel's performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice”);  Evans v. State, 28 P.3d 498, 524 (Nev.2001) (indicating “[t]he cumulative effect of multiple errors may violate a defendant's constitutional right to a fair trial even though errors are harmless individually”).   But see Middleton v. Roper, 455 F.3d 838, 851 (8th Cir.2006) (finding “a habeas petitioner cannot build a showing of prejudice on a series of errors, none of which would by itself meet the prejudice test”);  Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir.1998) (indicating “[t]o the extent this [c]ourt has not specifically stated that ineffective assistance of counsel claims, like claims of trial court error, must be reviewed individually, rather than collectively, we do so now”).

Because the court has determined that the petitioner was prejudiced as to each claim where it found a deficiency, it does not have to reach this issue of cumulative prejudice in this case.   However, were it to do so, the court would find that trial counsel's errors impaired the petitioner's ability to mount an effective defense, and “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”  (Internal quotation marks omitted.)  Hooks v. Workman, supra, 689 F.3d 1188.   Accordingly, the court would find that the petitioner has established that trial counsel's multiple errors resulted in prejudice.

CONCLUSION

In Strickland, the United States Supreme Court stated:  “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.   The court strongly believes that trial counsel's lack of criminal trial experience led to her making substantial errors in her representation of the petitioner such that the adversarial process broke down, and the state's evidence was not adequately challenged or tested.   Under these circumstances, the court finds that the trial cannot be relied upon as having produced a just result.

Accordingly, for this reason and all of the reasons stated in this decision, the court grants the habeas petition, vacates the petitioner's convictions in State v. James, Docket No. CR–03–0325106, judicial district of Waterbury, and orders the case returned to the criminal trial court for further proceedings.

So ordered.

Cobb, J.

FOOTNOTES

FN1. After the close of evidence, the petitioner moved to amend his petition to “simplify and clarify” certain claims and to remove others.   On May 14, 2013, the court granted the motion and allowed the amendment, finding that there was good cause for the amendment and that the amended petition clarified and consolidated issues and conformed to the evidence submitted at the habeas trial..  FN1. After the close of evidence, the petitioner moved to amend his petition to “simplify and clarify” certain claims and to remove others.   On May 14, 2013, the court granted the motion and allowed the amendment, finding that there was good cause for the amendment and that the amended petition clarified and consolidated issues and conformed to the evidence submitted at the habeas trial.

FN2. Prior to the habeas trial, the petitioner issued subpoenas duces tecum to the department of children and families (the department) and to the Waterbury juvenile court for documents related to the neglect proceedings involving the victim, and his brothers.   The department and the juvenile court filed motions to quash, citing various confidentiality statutes.   After a hearing under State v. Esposito, 192 Conn. 166, 179–80, 471 A.2d 949 (1984), the court reviewed in camera all of the documents produced by the department and juvenile court in response to the subpoenas and turned over to the parties redacted copies of certain documents.   Gibson v. Commissioner, 135 Conn.App. 139, 41 A.3d 700, cert. denied, 305 Conn. 922, 47 A.3d 881 (2012).   All of the records were sealed to protect confidential information, and the parties entered into a protective order precluding them from using the documents outside of the context of this case..  FN2. Prior to the habeas trial, the petitioner issued subpoenas duces tecum to the department of children and families (the department) and to the Waterbury juvenile court for documents related to the neglect proceedings involving the victim, and his brothers.   The department and the juvenile court filed motions to quash, citing various confidentiality statutes.   After a hearing under State v. Esposito, 192 Conn. 166, 179–80, 471 A.2d 949 (1984), the court reviewed in camera all of the documents produced by the department and juvenile court in response to the subpoenas and turned over to the parties redacted copies of certain documents.   Gibson v. Commissioner, 135 Conn.App. 139, 41 A.3d 700, cert. denied, 305 Conn. 922, 47 A.3d 881 (2012).   All of the records were sealed to protect confidential information, and the parties entered into a protective order precluding them from using the documents outside of the context of this case.

FN3. A multidisciplinary investigative team (MIT) is a team tasked with conducting a multidisciplinary forensic interview of individual children who are the alleged victims of sexual abuse.   One member of the team conducts the interview while the other members of the team listen and watch though a one-way mirror.   Generally, the department refers the child for such an investigation, which generally includes a forensic interview of the child as well as a forensic medical exam of the child.   A forensic interview follows structured guideline protocols to assess allegations of sexual abuse through the use of open-ended, nonbiased questions.   After the interview, the team interviews others, including parents, siblings, physicians, therapists, teachers and others who may have relevant information, and reviews documentary evidence, including department records.   The team examines alternative hypotheses as to the allegations.   Department records are important to the MIT's investigation because they shine light on family and provide context to the allegations..  FN3. A multidisciplinary investigative team (MIT) is a team tasked with conducting a multidisciplinary forensic interview of individual children who are the alleged victims of sexual abuse.   One member of the team conducts the interview while the other members of the team listen and watch though a one-way mirror.   Generally, the department refers the child for such an investigation, which generally includes a forensic interview of the child as well as a forensic medical exam of the child.   A forensic interview follows structured guideline protocols to assess allegations of sexual abuse through the use of open-ended, nonbiased questions.   After the interview, the team interviews others, including parents, siblings, physicians, therapists, teachers and others who may have relevant information, and reviews documentary evidence, including department records.   The team examines alternative hypotheses as to the allegations.   Department records are important to the MIT's investigation because they shine light on family and provide context to the allegations.

FN4. Although the prosecutor had access to the confidential files under the statute, it only produced for in camera review a couple of documents, which the trial court reviewed in camera and turned over after redacting them..  FN4. Although the prosecutor had access to the confidential files under the statute, it only produced for in camera review a couple of documents, which the trial court reviewed in camera and turned over after redacting them.

FN5. The trial court's ruling precluding evidence that the victim had been abused by his older brother was the subject of the petitioner's direct appeal of his conviction.  State v. James, supra, 291 Conn. 813 (2009).   The Supreme Court affirmed the trial court's determination that the petitioner failed to make a legally sufficient proffer under State v. Rolon, supra, 257 Conn. 156.   This issue—of counsel's failure to make a proper proffer as to F.'s abuse of the victim—was not raised in this habeas petition, and the issue of the victim abusing M. was not raised on appeal..  FN5. The trial court's ruling precluding evidence that the victim had been abused by his older brother was the subject of the petitioner's direct appeal of his conviction.  State v. James, supra, 291 Conn. 813 (2009).   The Supreme Court affirmed the trial court's determination that the petitioner failed to make a legally sufficient proffer under State v. Rolon, supra, 257 Conn. 156.   This issue—of counsel's failure to make a proper proffer as to F.'s abuse of the victim—was not raised in this habeas petition, and the issue of the victim abusing M. was not raised on appeal.

FN6. Although Rolon speaks of “prior” acts of sexual assault by the victim, § 54–86f is not limited to prior acts.   Additionally, cases applying the Rolon test and statute have not limited such evidence to prior acts of the victim.   See, e.g., State v. Ramirez, 79 Conn.App. 572, 830 A.2d 1165, cert. denied, 267 Conn. 902, 838 A.2d 212 (2003) (trial court erred in precluding evidence that the victim showered with boyfriend after the assault);  State v. Horrocks, 57 Conn.App. 32, 747 A.2d 25, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000) (trial court erred in precluding evidence that victim had sexual relationship with detective investigating the case after the assault)..  FN6. Although Rolon speaks of “prior” acts of sexual assault by the victim, § 54–86f is not limited to prior acts.   Additionally, cases applying the Rolon test and statute have not limited such evidence to prior acts of the victim.   See, e.g., State v. Ramirez, 79 Conn.App. 572, 830 A.2d 1165, cert. denied, 267 Conn. 902, 838 A.2d 212 (2003) (trial court erred in precluding evidence that the victim showered with boyfriend after the assault);  State v. Horrocks, 57 Conn.App. 32, 747 A.2d 25, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000) (trial court erred in precluding evidence that victim had sexual relationship with detective investigating the case after the assault).

FN7. General Statutes § 17a–28 governs confidentiality and access to records “created or obtained in connection with the department's child protection activities or to other activities related to a child while in the care and custody of the department ․” Subsection (g)(7) requires the department to disclose nonprivileged records to the Chief State's Attorney or his designee without consent of the person subject to the records “for the purposes of investigating or prosecuting an allegation related to child abuse or neglect ․” Whether the State must review department files for exculpatory information was raised but not decided in State v. Farah, 126 Conn.App. 437, 13 A.3d 1108, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011)..  FN7. General Statutes § 17a–28 governs confidentiality and access to records “created or obtained in connection with the department's child protection activities or to other activities related to a child while in the care and custody of the department ․” Subsection (g)(7) requires the department to disclose nonprivileged records to the Chief State's Attorney or his designee without consent of the person subject to the records “for the purposes of investigating or prosecuting an allegation related to child abuse or neglect ․” Whether the State must review department files for exculpatory information was raised but not decided in State v. Farah, 126 Conn.App. 437, 13 A.3d 1108, cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).

FN8. Pursuant to General Statutes § 46b–124, the petitioner had access to the juvenile court records of M. and A. due to his status as their father and that they were minors..  FN8. Pursuant to General Statutes § 46b–124, the petitioner had access to the juvenile court records of M. and A. due to his status as their father and that they were minors.

FN9. State's attorneys “in the performance of [their] duties” also have access to confidential juvenile court records, and the state's attorney “shall disclose to the defendant or his counsel in a criminal prosecution, without the necessity of a court order, exculpatory information and material contained in any record disclosed to such state's attorney pursuant to this section and may disclose, without a court order, information and material contained in any such record which could be the subject of a disclosure order.”  General Statutes §§ 46b–124(h) and 46b–124(i).   In addition, § 46b–124(b) provides that records of cases of juvenile matters “shall” be provided to “employees of the Division of Criminal Justice who in the performance of their duties require access to such records.”   Juvenile matters include neglect proceedings.  General Statutes § 46b–121(a)(1)..  FN9. State's attorneys “in the performance of [their] duties” also have access to confidential juvenile court records, and the state's attorney “shall disclose to the defendant or his counsel in a criminal prosecution, without the necessity of a court order, exculpatory information and material contained in any record disclosed to such state's attorney pursuant to this section and may disclose, without a court order, information and material contained in any such record which could be the subject of a disclosure order.”  General Statutes §§ 46b–124(h) and 46b–124(i).   In addition, § 46b–124(b) provides that records of cases of juvenile matters “shall” be provided to “employees of the Division of Criminal Justice who in the performance of their duties require access to such records.”   Juvenile matters include neglect proceedings.  General Statutes § 46b–121(a)(1).

FN10. Many of the respondent's arguments in opposition to Dr. Mantell's report involve matters that could have been explored by the state on cross examination or impeachment of Dr. Mantell had he been allowed to testify.   What weight, if any, to give to Dr. Mantell's findings would have been up to the jury to decide..  FN10. Many of the respondent's arguments in opposition to Dr. Mantell's report involve matters that could have been explored by the state on cross examination or impeachment of Dr. Mantell had he been allowed to testify.   What weight, if any, to give to Dr. Mantell's findings would have been up to the jury to decide.

FN11. The respondent also asserts that this is a new claim.   The July 18, 2012 amended petition included a claim that trial counsel was ineffective for failing to “adequately cross examine, impeach or otherwise challenge the testimony of the complainant's mother.”   The foster mother's testimony is directly relevant to this claim.   The court notes that the respondent did not object at trial to this testimony as being outside the scope of the petition..  FN11. The respondent also asserts that this is a new claim.   The July 18, 2012 amended petition included a claim that trial counsel was ineffective for failing to “adequately cross examine, impeach or otherwise challenge the testimony of the complainant's mother.”   The foster mother's testimony is directly relevant to this claim.   The court notes that the respondent did not object at trial to this testimony as being outside the scope of the petition.

FN12. The state's other arguments regarding the foster mother's testimony involve areas of inquiry the state could have pursued to cross examine the foster mother, as opposed to the issue of whether trial counsel should have sought to introduce it or whether it would have been admissible.   Ultimately, the weight and importance of her testimony would have been for the jury to decide.   This court finds that the trial court would have likely admitted this testimony had it been offered to impeach the mother..  FN12. The state's other arguments regarding the foster mother's testimony involve areas of inquiry the state could have pursued to cross examine the foster mother, as opposed to the issue of whether trial counsel should have sought to introduce it or whether it would have been admissible.   Ultimately, the weight and importance of her testimony would have been for the jury to decide.   This court finds that the trial court would have likely admitted this testimony had it been offered to impeach the mother.

FN13. This is not a new claim, as the respondent claims, but was included in the petitioner's July 18, 2012 amended petition in which the petitioner claimed that trial counsel failed to adequately impeach and cross examine the mother.   The state did not object to Kennedy's testimony at trial as outside the scope of the petition..  FN13. This is not a new claim, as the respondent claims, but was included in the petitioner's July 18, 2012 amended petition in which the petitioner claimed that trial counsel failed to adequately impeach and cross examine the mother.   The state did not object to Kennedy's testimony at trial as outside the scope of the petition.

FN14. The department report of this call from Kennedy is exhibit 6. The report indicated that the victim is “M.,” although Kennedy explained that that is a mistake as the victim was actually the individual referred to as the victim in this opinion..  FN14. The department report of this call from Kennedy is exhibit 6. The report indicated that the victim is “M.,” although Kennedy explained that that is a mistake as the victim was actually the individual referred to as the victim in this opinion.

FN15. Such testimony would have also been relevant and important to impeach the victim's claim that he had no prior conversations about the abuse with his mother..  FN15. Such testimony would have also been relevant and important to impeach the victim's claim that he had no prior conversations about the abuse with his mother.

FN16. If the mother denied the earlier disclosure, the report or the testimony of Kennedy could have been used to impeach her.   Tait, Colin C. and Prescott, Eliot D., Tait's Handbook of Connecticut Evidence, (4th Ed.2008), § 6.35.5..  FN16. If the mother denied the earlier disclosure, the report or the testimony of Kennedy could have been used to impeach her.   Tait, Colin C. and Prescott, Eliot D., Tait's Handbook of Connecticut Evidence, (4th Ed.2008), § 6.35.5.

FN17. The court does not credit the mother's claim at the habeas trial that she did not oppose the children being placed with the petitioner..  FN17. The court does not credit the mother's claim at the habeas trial that she did not oppose the children being placed with the petitioner.

FN18. In determining habeas standards, Connecticut courts often look to federal habeas decisional law for guidance.   See Crawford v. Commissioner of Correction, supra, 294 Conn. 180 (“[O]ur own jurisprudence concerning habeas corpus procedural defaults has developed in tandem with federal habeas corpus jurisprudence”);  Lebron v. Commissioner of Correction, 274 Conn. 507, 525, 876 A.2d 1178 (2005) (“The history of our own jurisprudence is wholly in accord with these [federal habeas] principles” [internal quotation marks omitted] );  Vincenzo v. Warden, 26 Conn.App. 132, 137, 599 A.2d 31 (1991) (state habeas corpus jurisprudence wholly in accord with the principles embodied in federal habeas corpus jurisprudence)..  FN18. In determining habeas standards, Connecticut courts often look to federal habeas decisional law for guidance.   See Crawford v. Commissioner of Correction, supra, 294 Conn. 180 (“[O]ur own jurisprudence concerning habeas corpus procedural defaults has developed in tandem with federal habeas corpus jurisprudence”);  Lebron v. Commissioner of Correction, 274 Conn. 507, 525, 876 A.2d 1178 (2005) (“The history of our own jurisprudence is wholly in accord with these [federal habeas] principles” [internal quotation marks omitted] );  Vincenzo v. Warden, 26 Conn.App. 132, 137, 599 A.2d 31 (1991) (state habeas corpus jurisprudence wholly in accord with the principles embodied in federal habeas corpus jurisprudence).

Cobb, Susan Quinn, J.