Anderson v. Comm'r of Corr.

• Decision Date: 02 September 2014
• Docket Number: No. 18825.,18825.
• Citation: 98 A.3d 23,313 Conn. 360
• Court: Connecticut Supreme Court
• Parties: Oscar ANDERSON v. COMMISSIONER OF CORRECTION.

313 Conn. 360

98 A.3d 23

Oscar ANDERSON

v.COMMISSIONER OF CORRECTION.

No. 18825.

Supreme Court of Connecticut.

Argued Feb. 14, 2013.

Decided Sept. 2, 2014.

Daniel J. Foster, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (respondent).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and VERTEFEUILLE, Js.^*

NORCOTT, J.

In this certified appeal,¹ the petitioner, Oscar Anderson, claims that the Appellate Court improperly affirmed the judgment of the habeas court rejecting his claim that he was entitled to a new trial on the ground that his trial counsel rendered ineffective assistance. See Anderson v. Commissioner of Correction, 128 Conn.App. 585, 598, 17 A.3d 1138 (2011). Specifically, the petitioner contends that the Appellate Court improperly concluded that he was not prejudiced by trial counsel's failure to investigate his claims that he had a history of various sexually transmitted diseases, to introduce medical records concerning that history, to introduce evidence concerning whether the victim had contracted any sexually transmitted diseases, and to present expert testimony concerning the transmission rates of such diseases. The petitioner argues that it is reasonably probable that, had such evidence been introduced at his criminal trial, the result of the trial would have been different. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The record reveals the following relevant facts and procedural history. The petitioner was represented at trial by Attorneys Jeffrey Hutcoe and John Cizik. ² Following a jury trial, the petitioner was convicted of one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(2)³ and one count of risk of injury to a child in violation of General Statutes § 53–21(a)(1). The Appellate Court affirmed the judgment of conviction on direct appeal; see State v. Anderson, 86 Conn.App. 854, 856, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005); and, on April 30, 2009, the petitioner filed an amended petition for a writ of habeas corpus alleging ineffective assistance of counsel. The facts underlying the petitioner's criminal conviction are set forth in the decision of the Appellate Court affirming the petitioner's conviction on direct appeal. “In 1997, the [petitioner] and the victim's mother met at their place of employment and became romantically involved. Shortly thereafter, when the victim was seven years old, the [petitioner] moved into the mother's household. The mother worked the second shift and was not at home when the victim returned from school. The [petitioner], who worked a different shift, was there. At first the victim and the [petitioner] had a good relationship, but later the victim told people she did not like the [petitioner].

“The [petitioner] punished the victim. The [petitioner] struck her face with his hand when he was angry because she had not done her homework correctly. She did not tell her mother about this because she was afraid of what the [petitioner] might do. On one occasion, the [petitioner] hit her so hard her nose bled. The [petitioner] also compelled her to hold a book bag filled with tapes and clothes on a stick over her head for long periods of time. On another occasion, he made her kneel on grains of rice. Although the victim did not tell her mother about these events, she confided in her best friend. The friend's mother testified that she noticed behavioral changes in the victim beginning in 1998. The victim, who had been carefree, had become quiet and withdrawn. The victim's grades suffered, and she exhibited a poor attitude at school. After school one day, the victim was terrified to go home on the school bus. Her teacher and school principal conferred with her mother. The victim, however, had not told anyone other than her friend that she was afraid of the [petitioner].

“The victim also testified that the [petitioner] made her rub his back or his feet while he was wearing only his underwear. In addition, he called her into the bedroom and asked her to rub his private parts. One night she woke up and the [petitioner] was attempting to put his penis in her mouth. She reported this to her mother who told her that she must have been dreaming. The victim testified that the [petitioner] had sexual intercourse with her by putting ‘his private into [her] butt.’ When she was nine and in the fourth grade, the [petitioner] had intercourse with her almost ‘every other night or twice a week.’ The [petitioner] forced the victim to have oral, anal and vaginal intercourse with him.

“The victim did not tell her mother about the incidents of sexual abuse until shortly after a fire occurred in their home, the day after Thanksgiving, 2000. The victim was spending time with her grandmother who overheard her talking to herself. The grandmother insisted that the victim tell her what she was talking about. The victim told her grandmother of the [petitioner's] sexual abuse. The grandmother informed the mother and immediately took the victim to the police station. The victim gave a statement to the police in which she related the [petitioner's] sexual abuse. The police advised the victim's mother to take her to a hospital that specialized in assessing children who are victims of sexual abuse. The mother followed the advice of the police. The victim was examined by Judith Kanz, a certified pediatric nurse practitioner, who specializes in child forensic medical examinations.” (Footnote omitted.) Id., at 856–58, 864 A.2d 35.

During direct examination, Kanz testified that she had conducted an examination of the victim's vaginal and anal areas in December, 2000. According to Kanz, the examination of the victim's vaginal area indicated signs of repetitive contact and the findings from her examination were consistent with the victim's claims. With respect to the anal examination, Kanz testified that the exam was “generally within normal limits.” On cross-examination, Kanz testified that when she examines children who have made allegations of sexual abuse, she determines whether the children have injuries that require medical attention. Kanz indicated that she would provide any follow-up medical treatment if necessary and specified that sexually transmitted diseases require such treatment. When asked by defense counsel whether she had provided follow-up care to the victim in the present matter, Kanz responded, “No.”

“The [petitioner] testified that the victim did not like him because she felt that he was replacing her father and because he planned to marry her mother. He admitted that he disciplined the victim for not doing her homework or her chores. As punishment, he took away the victim's privileges or gave her ‘time outs.’ He also testified that he made the victim hold a stick on which an empty book bag was suspended for five minutes. The [petitioner] denied that he had sexually assaulted the victim.” State v. Anderson, supra, 86 Conn.App. at 858, 864 A.2d 35. Thereafter, the jury returned a verdict of guilty as to one count each of sexual assault in the first degree and risk of injury to a child. Id., at 856, 864 A.2d 35; see also State v. Anderson, 119 Conn.App. 98, 104–105, 985 A.2d 1096 (2010) (vacating petitioner's sentence on risk of injury charge and remanding case for resentencing).

With respect to the habeas trial, the record reveals the following relevant facts, which the habeas court reasonably could have found. During the criminal trial, the petitioner initially was represented by Hutcoe and subsequently was represented by Cizik. The petitioner testified that he had told both Hutcoe and Cizik that he “had various venereal diseases” and that he did not assault the victim. Hutcoe testified that he recalled the petitioner telling him that he had sexually transmitted diseases and that he remembered asking the petitioner, who had been released on bond, to bring “some kind of proof” from his physician. According to Hutcoe, the petitioner never provided any medical records. Cizik testified that he recalled meeting with the petitioner prior to the criminal trial, but that he did not recall the petitioner telling him that he had a history of sexually transmitted diseases. With respect to discovery, both Cizik and Hutcoe testified that the state had an open file policy and that Kanz' report following her examination of the victim was in that file.

Attorney Richard Meehan, who testified during the habeas trial as an expert witness for the petitioner, opined that reviewing the state's file and obtaining copies of relevant documents from that file was not sufficient to satisfy counsel's discovery obligations in this type of case. In Meehan's opinion, counsel in such a case is obligated to investigate whether the victim or the accused had a sexually transmitted disease during the relevant time frame and that, if the accused had a sexually transmitted disease while the victim did not, counsel would also be obligated to introduce testimony from a medical expert indicating that the accused could not have been the individual who assaulted the victim.

During the habeas trial, the petitioner also presented the testimony of Timothy Grady, a registered nurse, as an expert witness with respect to sexually transmitted diseases. Grady testified on direct examination that he had treated numerous people infected with sexually transmitted diseases during his approximately twenty year career as a nurse. According to Grady, patients who visit the emergency room for treatment of sexually transmitted diseases often do not wait for culture results. As a result, patients may be treated “prophylactically or empirically ... for whatever was presumed to be the problem.” Grady testified that his...