Angeles v. Comm'r of Corr.

• Decision Date: 18 March 2014
• Docket Number: No. 33746.,33746.
• Citation: 87 A.3d 600,148 Conn.App. 825
• Court: Connecticut Court of Appeals
• Parties: ANTONIO A. v. COMMISSIONER OF CORRECTION.

148 Conn.App. 825

87 A.3d 600

ANTONIO A.^*

v.COMMISSIONER OF CORRECTION.

No. 33746.

Appellate Court of Connecticut.

Argued Jan. 8, 2014.

Decided March 18, 2014.

Damon A.R. Kirschbaum, with whom, on the brief, was Jennifer B. Smith, for the appellant (petitioner).

Rita M. Shair, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and, on the brief, Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

BEAR, KELLER and SCHALLER, Js.

BEAR, J.

The petitioner, Antonio A., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred in denying his petition because his “constitutional right to the effective assistance of trial counsel, under the [s]ixth and [f]ourteenth [a]mendments to the United States [c]onstitution, was violated.” We affirm the judgment of the habeas court.

The following facts, as set forth in the petitioner's direct appeal; State v. Antonio A., 90 Conn.App. 286, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S.Ct. 1373, 164 L.Ed.2d 81 (2006); are relevant to the resolution of the petitioner's appeal. “On the evening of August 12, 2001, the [petitioner] returned home from work. His daughter, the victim, who had become eight years old the previous day, was sleeping in the living room. The [petitioner] inserted his finger into the victim's vagina two times. The victim later told her mother, who did not live with the [petitioner], what had happened and said that her vaginal area had become painful. Her mother took her to a physician, who discovered that the victim had a vaginal injury consistent with digital penetration. The state charged the [petitioner] with two counts of risk of injury to a child and two counts of sexual assault in the first degree. After a trial, the jury returned a verdict of guilty on all counts. The court also found the [petitioner] in violation of his probation, which had been imposed for a prior conviction of possession of narcotics. The court sentenced the [petitioner] to a total effective term of forty-four years incarceration, execution suspended after twenty-four years, followed by ten years probation and lifetime sex offender registration.” Id., at 289, 878 A.2d 358. The petitioner appealed from the judgment of conviction, and this court affirmed the judgment of the trial court. The petition for certification to appeal from our affirmance was denied by our Supreme Court, and a petition for certification to appeal to the Supreme Court of the United States also was denied.

On October 16, 2009, the petitioner filed an amended petition for a writ of habeas corpus claiming that his criminal trial attorney had rendered ineffective assistance of counsel. The habeas court denied the petition following a trial, finding that counsel's “assistance was reasonable considering all the circumstances; he investigated the case, prepared for trial and employed reasonable trial strategies.” Thereafter, the court granted the petition for certification to appeal. This appeal followed.

The petitioner claims that his “constitutional right to the effective assistance of counsel, under the [s]ixth and [f]ourteenth [a]mendments to the United States [c]onstitution, was violated by his counsel's failure to adequately cross-examine, impeach, and otherwise challenge the testimony of [1] the complainant, [2] Lisa Murphy–Cipolla, [the clinical child interview supervisor at Saint Francis Hospital and Medical Center in Hartford, who conducted the forensic interview of the victim] and [3] Wendy Witt, M.D. [the emergency room physician who examined the victim at Lawrence and Memorial Hospital in New London]. Counsel also failed to present the testimony of a forensic psychologist (or other similar expert) with an expertise in investigating and assessing child sexual abuse allegations.” We are not persuaded.

“As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ... [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 703–704, 23 A.3d 682 (2011).

I

The petitioner claims that counsel provided ineffective assistance by inadequately cross-examining, impeaching, and otherwise challenging the testimony of the victim, Murphy–Cipolla, and Witt. He argues that the victim provided some inconsistent information about exactly what had occurred and that counsel failed to confront her inconsistencies, that counsel failed to confront Murphy–Cipolla regarding her handling of the inconsistencies during the victim's interview, that counsel failed to confront Murphy–Cipolla regarding her failure to follow her own protocol, and that counsel failed to confront Witt as to her interpretation of the medical evidence, which, in the petitioner's view, could have provided evidence that might have exonerated him. We are not persuaded.

“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798–99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

After carefully reviewing the record, we agree with the habeas court's conclusion that the petitioner failed to demonstrate that trial counsel's questioning of the victim, Murphy–Cipolla, or Witt constituted deficient performance. Our review of the trial transcripts, which were provided as an exhibit at the habeas trial, does not reveal any inconsistent testimony on the part of the victim during the criminal trial, nor does the petitioner point to any such inconsistencies during that trial. The alleged inconsistencies occurred during Murphy–Cipolla's interview of the victim.¹During the habeas trial, however, trial counsel explained that during cross-examination of the victim at the petitioner's criminal trial, he did not want to engage her regarding the specifics of the sexual assault because he believed it would not have been looked upon favorably by the jury, and he did not want to open the door to the videotape of the forensic interview being shown to the jury because it showed an eight year old girl explaining that her father had abused her sexually.² Counsel explained: “I didn't want that interview in front of the jury. I don't think this child came off in a way that would do anything other than harm our case.” He also testified that the reason he did not engage Murphy–Cipolla about possible inconsistent statements by the victim during Murphy–Cipolla's interview of her was because the victim already had testified at the petitioner's criminal trial and he believed that Murphy–Cipolla could explain away the inconsistencies, possibly testify as to why the inconsistencies may have occurred, and that then the jury may have viewed her as an expert in this area. He especially did not want to do this when there was physical evidence to support the victim's allegations. As to the petitioner's claim that trial counsel was deficient for not confronting Murphy–Cipolla about her failure to follow her own protocols, at the petitioner's habeas trial, Murphy–Cipolla testified that protocols only serve as guidelines to be used during an interview, that every child is different, and that investigators must use professional judgment.

As to the petitioner's allegation that trial counsel failed to cross-examine Witt adequately regarding medical evidence that could have been used to exonerate him, he has not directed us to any evidence that was introduced during his habeas trial that was not introduced during the criminal trial. Furthermore, the petitioner's criminal trial attorney explained that he tried to keep the testimony of these witnesses focused because he did not want to do anything that could open the door to questions about the petitioner's prior conduct in light of previous allegations of sexual assault made by another of his daughters ten years earlier.

“An attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.” (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Accordingly, although the petitioner may be discontented with...