Stephen S. v. Comm'r of Corr.

• Decision Date: 17 April 2012
• Docket Number: AC 32727
• Court: Connecticut Court of Appeals
• Parties: STEPHEN S. v. COMMISSIONER OF CORRECTION

STEPHEN S.¹ v. COMMISSIONER OF CORRECTION

AC 32727

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 19

officially released April 17, 2012

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(Appeal from Superior Court, judicial district of Tolland, T. Santos, J.)

Mary H. Trainer, special public defender, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee (respondent).

Opinion

ROBINSON, J. The petitioner, Stephen S., appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal the petitioner asserts that the habeas court erred in denying his claim of ineffective assistance of trial counsel because his trial counsel (1) did not sufficiently consult with expert witnesses regarding the physical evidence of sexual abuse in the petitioner's case and (2) failed to consult with experts in the field of child sexual abuse to counter the prosecution's witnesses. We disagree with the petitioner's contentions, and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of the petitioner's claim. The victim, the petitioner's daughter, accused the petitioner of sexually assaulting her on a regular basis from the time that the victim was four years old until she was nine years old. The victim was evaluated by the Yale Child Sexual Abuse Clinic, where she detailed the alleged sexual abuse and was physically examined by Janet Murphy, a nurse practitioner. The victim testified at the petitioner's criminal trial in graphic detail about the physical and sexual abuse that she suffered.

At the petitioner's criminal trial, the prosecution provided the testimony of Murphy. Murphy testified that the victim had a ''normal exam.'' She testified that ''there is a whole range of what normal can mean. But basically what I'm looking for is any kind of sign or mark left from the touching that may have occurred. And basically by saying normal, I saw no sign of sexually transmitted disease, and I did not see any sign or mark which pretty most of the kids we see for concerns of sexual abuse. Despite what—you know, many kids report a variety of different things, those children will have normal exams.'' When asked if it was unusual to have a normal exam for a child who has claimed that they were sexually abused, Murphy responded that ''[n]o, it's not unusual.'' When asked to explain, Murphy testified: ''First reason would be many times when the medical evaluation is performed, there has been a fair amount of time that has passed from when the incident occurred to when we are seeing the child. And so in that amount of time tissue can heal very quickly. And to—in a way where there is no evidence or mark left.'' When asked directly if something in the genital area could heal without leaving a scar, Murphy responded in the affirmative. Murphy also testified about possible indicators of sexual abuse, noting that one physical indicator is that a child suffers from encopresis, a condition where a child retains their bowel movements.

Celmira Gonzalez, an investigator with the department of children and families, testified at the petitioner's criminal trial that when speaking to the victim, thevictim's demeanor was that of someone who was ''too mature for her age.'' When asked if the victim exhibited any indicators of abuse, Gonzalez answered in the affirmative and noted that the victim ''presented herself like an adult, like a child that her infancy and her childhood was vanished already.''

Elizabeth Stenger, a social worker at the Clifford W. Beers Guidance Clinic, testified at the petitioner's criminal trial as to ''red flags'' of potential abuse. The prosecution proceeded by presenting the following hypothetical to Stenger: ''I'm going to ask you to make some assumptions. A child has alleged that they have been sexually abused and suffers from or claims to suffer from auditory hallucinations of her perpetrator and visual hallucinations of the perpetrator and seems to appear distrustful of other individuals in particular men, has an inability to sleep by themselves, has issues of hygiene in terms of changing underwear or taking showers or baths, trouble sleeping, either falling asleep or staying asleep, trouble in school, oppositional behavior to a—either parental figure or a caretaker, would that behavior be consistent with a child who has been sexually abused?'' Stenger responded in the affirmative.²

The petitioner was convicted after a jury trial of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1), one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The petitioner was sentenced to a total term of sixty years of incarceration, consisting of three consecutive twenty year terms on the sexual assault counts and concurrent terms on the remaining counts. The petitioner appealed to this court, and we affirmed the judgment of the trial court.

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of both trial and appellate counsel.³ In the petitioner's amended petition his principal claims pertaining to the ineffective assistance of trial counsel were that his trial counsel did not conduct sufficient consultation regarding the medical proof available to the prosecution, did not meaningfully challenge the testimony of medical personnel who testified for the prosecution, did not present medical testimony to support the petitioner's declaration of innocence, did not introduce as evidence medical reports concerning the victim's behavior and mental health, failed to object to constancy of accusation witnesses and failed to object to the prosecution's cross-examination of the petitioner.

At the habeas proceeding, the petitioner's trial counsel, Martin McQuillan, testified that prior to trial he hadconsulted with Frederick J. Rau, the director of the division of gynecology at the Connecticut Children's Medical Center. McQuillan testified that he sent Rau results of the victim's medical examination, which had reported a normal finding. Rau informed McQuillan that a normal finding from a physical examination could be consistent with child sexual abuse and that he could not testify to a reasonable degree of medical probability that a normal finding would be inconsistent with penile-vaginal penetration, penile-anal penetration or tongue to vaginal penetration. McQuillan further stated that subsequent to Murphy's testimony for the prosecution that a normal finding was not unusual in child sexual abuse cases, he specifically discussed Murphy's testimony with Rau, and Rau indicated that if he testified, his testimony would be the same as Murphy's testimony.

McQuillan also testified that he had consulted with Peter Zeman, a psychiatrist at the Institute of Living, to evaluate the petitioner and to review the victim's records. Zeman apprised him that everything in the victim's records was consistent with someone who had been sexually abused as a child. McQuillan testified that a substantial reason why he chose not to introduce the victim's records at the criminal trial was because he did not want to open the door and to give the prosecution the opportunity to elicit testimony that the victim's behavior was in fact consistent with child sexual abuse.⁴

At the habeas proceeding, the petitioner provided expert testimony from Mark Taff, a forensic pathologist. Taff testified that if a child's genitalia were penetrated by adult male genitalia, it could result in a laceration or tear, the healing process of which, depending on its size, would result in the formation of a scar. Taff testified that if the injury is superficial, an individual can have a bruise of various sizes, which will usually heal itself within one or two weeks. Taff further testified that ''based on the frequency that was reported and my understanding of the reports that the lack of evidence would be inconsistent with [numerous occurrences of anal penetration], that I would as a physician expect to find some type of anal injury to a child who has been penetrated multiple times by a normally formed, erect adult male. . . . If the...