Santos v. Comm'r of Corr.

• Decision Date: 05 April 2017
• Docket Number: File No. CV-14-4005961-S
• Court: Connecticut Court of Appeals
• Parties: ALEXIS SANTOS v. COMMISSIONER OF CORRECTION

ALEXIS SANTOS v. COMMISSIONER OF CORRECTION^*

File No. CV-14-4005961-S

COURT OF APPEALS OF THE STATE OF CONNECTICUT

April 5, 2017

APPENDIX

Superior Court, Judicial District of Tolland

Proceedings

Memorandum of decision after completed habeas corpus trial to court. Judgment for respondent.

James E. Mortimer, assigned counsel, for the petitioner.

Eva B. Lenczewski, supervisory assistant state's attorney, for the respondent.

Opinion

OLIVER, J. The petitioner, Alexis Santos, brings this petition for a writ of habeas corpus, claiming that his criminal defense attorney provided him ineffective assistance in violation of the state and federal constitutions, and seeking to have his convictions vacated. Specifically, the petitioner claims, in his amended petition filed July 22, 2016, that his right to effective legal representation was denied in that his counsel, Attorney Tashun Bowden-Lewis, committed a number of errors at trial.

The petitioner claims that his right to effective legal representation at trial was denied in that his underlying trial counsel was constitutionally deficient in the following ways:

a. She did not retain, consult with and present the testimony of a mental health professional with an expertise in investigating and evaluating child sexual abuse allegations in order to:

1. Call into question the reliability of victim M.H.'s disclosures;

2. Call into question the reliability of victim Y.H.'s disclosure;

3. Rebut the testimony of prosecution witness Theresa Montelli concerning "common characteristics and behaviors" of sexually abused children;

4. Rebut the testimony of prosecution expert witness Theresa Montelli concerning the statistical probabilities of children and recantation;

5. Provide a consultation source to counsel so as to avoid eliciting damaging information on cross-examination concerning recantations;

6. Provide an alternative innocent explanation for false allegations; and

7. Rebut the credibility of the forensic interviewer re: failing to explore alternative innocent explanations.

b. She failed to adequately cross-examine, impeach and otherwise challenge the testimony of the victim M.H., concerning her motive, interest and bias against the petitioner;

c. She failed to adequately object to the introduction of M.H.'s forensic interview based on hearsay grounds;

d. She failed to adequately challenge the testimony of Y.H. concerning her motive, interest and bias against the petitioner;

e. She failed to adequately object to the introduction of Theresa Montelli's expert testimony;

f. She failed to adequately object, based on relevancy, to the testimony of Theresa Montelli concerning com-mon characteristics and behaviors of sexually abused children;

g. She failed to adequately challenge the testimony of Theresa Montelli concerning her knowledge of statistical data in the field of child sexual abuse;

h. She failed to adequately challenge the testimony of O.S., the mother of the complaining witnesses;

i. She failed to investigate and introduce evidence of the petitioner's work history to challenge the victims' testimony as well as to challenge the notion of the petitioner's access to the victims;

j. She failed to properly object to prosecution witness Donna Meyer's testimony characterizing M.H.'s testimony as credible;

k. She failed to call Daisy Cruz as a witness in the defense case-in-chief;

l. She failed to call Claribel Santos, Carlos Santos and Tanya Wilcher-Lombardo as witnesses in the defense case-in-chief to challenge:

1. The victims' testimony re: exterior door locks on their bedroom doors;

2. The petitioner's access to the victims;

3. O.S.'s testimony re: her work history; and

4. The time frame during which the petitioner resided with the victims; and

m. She failed to present the trial court with supporting information as to the unavailability of Daisy Cruz so as to cause the trial court to allow the testimony of Ms. Cruz by either videoconference or deposition.

The respondent, the Commissioner of Correction, denies the allegations. The court heard the trial of this matter on the merits on September 13, October 24 and December 21, 2016. The petitioner called eight witnesses: himself, Attorney Bowden-Lewis, Tanya Lombardo, Jeffrey Cianciolo, Claribel Santos, Dayanara Santos, expert mental health witness David Mantell and expert legal witness Kenneth Simon. Despite repeated diligent attempts, the petitioner was unable to secure the testimony of Daisy Cruz. The petitioner entered into evidence a number of exhibits. The respondent called no witnesses and offered three exhibits. Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.

IPROCEDURAL HISTORY

On September 24, 2012, in the Waterbury judicial district, in the matter of State v. Santos, Docket No. CR-11-401131, following a jury trial, the petitioner was convicted of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),four counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of risk of injury to a child in violation of § 53-21 (a) (1). In docket number CR-11-402391, the petitioner was convicted of one count of sexual assault in the first degree, one count of risk of injury to a child in violation of § 53-21 (a) (2), one count of risk of injury to a child in violation of § 53-21 (a) (1) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). On November 30, 2012, the trial court, Crawford, J., sentenced the petitioner to a total effective term of twenty years of incarceration followed by twenty years of special parole.

The petitioner appealed from the underlying criminal judgment, and on March 24, 2014, the Appellate Court affirmed the conviction per curiam. State v. Santos, 148 Conn. App. 907, 86 A.3d 1099, cert. denied, 311 Conn. 944, 89 A.3d 351 (2014). On February 7, 2014, the petitioner initiated this matter by the filing of his petition for a writ of habeas corpus. The petitioner was assisted at trial by a Spanish language interpreter.

The allegations against the petitioner by victim M.H. include sexual contact by digital penetration on one occasion as well as nonsexual physical abuse. The allegations against the petitioner by Y.H. include repeated penile-vaginal, penile-anal and penile-oral sexual abuse.

II

LAW/DISCUSSION

A

Civil Matters—Generally

Standard of Proof

The standard of proof in civil actions, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Burden of Proof

While the "plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence; and a party has the same right to submit a weak case as he has to submit a strong one . . . the plaintiff [must still sustain] his burden of proof on the contested issues of his complaint," and the defendant need not present any evidence to contradict it." (Citations omitted.) Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of the cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.Proceedings

"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . ." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn. App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony. . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . . ." (Internal quotation marks omitted.) In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded [to] the testimony." (Internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 123. "The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 764 A.2d 199 (2001).

Credibility

It is well established that "[i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007); see also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937). Such observation may include all genuine...