Opinion
No. CV05-4000622 S
August 28, 2009
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed August 16, 2005, and which was amended on December 11, 2008. The amended petition raises claims in five counts: first, ineffective assistance of trial counsel for failure to address the constancy of accusation testimony; second, ineffective assistance of trial counsel for failure to call witnesses at trial to impeach the credibility of the petitioner's ex-wife; third, ineffective assistance of trial counsel for failure to call Dr. Joseph Plaud as a witness; fourth, ineffective assistance of trial counsel for failure to object to certain testimony; and fifth, ineffective assistance of trial counsel for failure to elicit certain testimony. In essence, the petitioner asserts but a single claim, ineffective assistance by trial defense counsel, in violation of his state and federal constitutional rights under article first, § 8, of the constitution of Connecticut and the sixth amendment to the constitution of the United States, premised on four deficiencies. The respondent's return denies that the petitioner was deprived of the effective assistance of counsel and leaves him to his burden of proof.
The petitioner filed a separate petition for a writ of habeas corpus on September 15, 2005, and which was docketed as CV 05-4000771 in this judicial district. Upon motion by the petitioner's counsel, the cases were consolidated because the same convictions were challenged in both petitions, and both petitions raised the same or related issues. The instant matter remained as the controlling case.
The court with disfavor notes that the amended petition and other pleadings filed by the petitioner such as the post-trial brief consistently refer to the "alleged sexual assault" and the petitioner's ex-wife as the "complainant." The petitioner does not raise a claim of actual innocence and stands duly convicted and sentenced until determined otherwise. The presumption of innocence does not survive a conviction. Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994). The court instead will use the more appropriate terms "sexual assault" and "victim" in place of the petitioner's oblique phases.
The claim pertaining to Dr. Plaud was not pursued at the habeas trial due to the inability to secure Dr. Plaud's presence and testimony. The court considers the claim either withdrawn or, in the alternative, abandoned.
The matter came before the court on March 17, 2009, for a trial on the merits. The court heard testimony presented by Dr. Sidney Horowitz, Sylvia Richard, Michael Gannon, Attorney Fanol Bojka, and Attorney Thomas Farver. Additionally, various documents were entered into evidence, primarily consisting of transcripts of the underlying criminal proceedings and the petitioner's dissolution of marriage case. The court permitted the parties to file post-trial briefs, with the petitioner's brief due on or before April 17, 2009, and the respondent's brief due on or before May 18, 2009. The petitioner's brief was filed with the court on April 27, 2009; the respondent's brief was filed with the court on May 13, 2009.
For the reasons stated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
Findings of Fact CT Page 14223
The petitioner was the defendant in the case of State v. William Coleman in the judicial district of Waterbury, docket numbers CR02-315338 and CR02-315150. On February 2, 2005, the trial court, Cremins, J., granted the state's motion to consolidate docket numbers CR02-315338 and CR02-315150. On docket numbers CR02-315338 and CR02-315150, the petitioner was charged in six counts with the following offenses: I.) Sexual Assault in a Spousal Relationship, in violation of General Statutes § 53a-70b(b); II.) Unlawful Restraint in the First Degree, in violation of General Statutes § 53a-95 (a); III.) Breach of Peace in the Second Degree, in violation of General Statutes § 53a-181; IV.) Criminal Trespass in the First Degree, in violation of General Statutes § 53a-107(a)(1); V.) Threatening in the Second Degree, in violation of General Statutes § 53a-62(a)(1); and VI.) Larceny in the Sixth Degree, in violation of General Statutes § 53a-126b(a).
The state alleged that counts I and II occurred on Thursday, October 3, 2002, and that counts III, IV, V and VI occurred on Friday, October 4, 2002. The charged offenses involved the petitioner's wife at the time. The petitioner was divorced at the time of trial.
At all relevant times, the petitioner was represented by former Attorney Michael Gannon, who no longer practices law, but also was represented at various times during the criminal proceedings by other lawyers in addition to Attorney Gannon.
The petitioner commenced a jury trial before the Honorable Judge William Cremins on February 14, 2005. On February 16, 2005, Judge Cremins granted the defense Motion for Judgment of Acquittal as to count IV, Criminal Trespass in the First Degree. On February 24, 2005, the jury found the petitioner guilty on counts I, II, III, V and VI. On May 6, 2005, Judge Cremins sentenced the petitioner as follows: count I — 15 years to serve, execution suspended after the service of 8 years, followed by 15 years probation; count II — 5 years to serve; count III — 6 months to serve; count V — 1 year to serve; and count VI — 3 months to serve. Judge Cremins ordered the sentences to run concurrently, for a total effective sentence of 15 years to serve, execution suspended after the service of 8 years, followed by 15 years probation.
The petitioner appealed from the judgments of conviction. The Appellate Court affirmed the convictions in State v. William C., 103 Conn. 508, 930 A.2d 753, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007). According to the Appellate Court's decision, "[t]he jury reasonably could have found the following facts. J. was born in England and came to the United States in 1988. The defendant and J. were married in October 1994, and they have two sons. Problems developed in the marital relationship. In 1999, J. took their two sons for extended visits in England without the defendant's consent. After the second trip, the defendant sought an injunction in 1999 to prevent J. from taking the children out of the country without his permission. The defendant and J. stipulated to a court order awarding them joint custody of the children with primary residence with the defendant.
"In the summer of 2000, the defendant moved from their residence in New Britain to Newport, Rhode Island, without the children, to live with another woman. In December 2001, while the defendant was still living in Newport, J. moved to Waterbury with the children and rented a house. In August 2002, she purchased the house and held title in her name alone. After J. and the two boys moved to Waterbury, the defendant occasionally visited them on the weekends. Sometime during the summer of 2002, the defendant was asked to leave the residence in Newport. He told J. that he wanted to move into her Waterbury residence, but she told him that she did not want him living with them. He indicated that he was returning anyway and began to move boxes of his belongings into her house over a period of a few weeks. J. told the defendant that she wanted a divorce. He indicated that he would not allow a divorce and that she had to "work" on the marriage.
"Sometime in August 2002, J. told the defendant that she had a boyfriend, M. The defendant became very upset and told her that she could no longer communicate with M. On Saturday, September 28, 2002, J. told the defendant that she had to attend a work function that evening. She actually intended to attend a wedding in Massachusetts with M. On the way home, J.'s car broke down, and she telephoned the defendant to apprise him of the situation. She had the car towed to a dealership in Cheshire, close to her place of employment, and asked the defendant to meet her there. He was very angry that she was with M. and said that he would not come. J. called her friend, Heather, who agreed to meet her in Cheshire and drive her back to her house in Waterbury. While J. and Heather were at the dealership, the defendant arrived with the children. J. and the defendant argued in the dealership's parking lot for almost one hour before J. left with the defendant. En route to Waterbury, the defendant informed J. that he had telephoned their friend, Holly, who would meet them at the house and take the boys out for a few hours so that he and J. could discuss the situation. During the week that followed, the defendant engaged in a pattern of sexual, physical and verbal abuse of J.
"Consistent with this pattern, at approximately 1 a.m. on October 3, 2002, the defendant came into J.'s bedroom and turned on the light. He told her to perform oral sex, but she refused. He called her several degrading names and continued his demands, but she continued to refuse. He then told her that they would have anal intercourse. J. refused, but the defendant turned her onto her stomach, held her down and sexually assaulted her. Later that morning when he drove her to work, he informed her that he would kill her or punish her and take the boys if she told anyone about what had happened the night before. Nevertheless, J. went to the police department, and the defendant was subsequently arrested. The charged offenses arose from this October 3, 2002 incident.
"At one point during J.'s testimony at trial, the prosecutor requested that the jury be excused so that the prosecutor could make an offer of proof. Outside the presence of the jury, J. related the series of events that occurred between Sunday, September 29, 2002, and Thursday, October 3, 2002, the date of the charged offenses. The defendant objected to any testimony regarding allegations of prior uncharged misconduct. The court ruled that it would permit the testimony and gave a limiting instruction to the jurors when they returned to the courtroom.
"J.'s testimony was as follows. As soon as Holly took the boys away from the house on September 29, 2002, the defendant pulled down all of the shades. He forced J. to strip and made her crawl on her hands and knees to a shower to wash away all traces of M. He called her vulgar names, struck her, spit at her and made her eat his saliva off the floor. The defendant destroyed some of her clothing by ripping and cutting various items with a pair of scissors. He told her that he was going to take the boys to England and that he would `make it hell' for her unless she did everything he told her to do until they left the country.
"After the boys returned home and were put to bed, the abuse continued. The defendant would not let J. sleep and made her dress in high heels and various lingerie outfits. He continued to spit on her face and hit her. On Monday morning, he took J. with him to the courthouse and filed for sole custody of the children. Later that evening, when the boys were in bed, he continued abusing J. and ordered her to perform oral sex. If she refused, he struck her and threatened to kill her. He also insisted that she report to him in detail her sexual activities with M.
"On Tuesday morning, October 1, 2002, the defendant drove J. to her place of employment. He had taken her house and car keys, her driver's license and her credit card on Sunday evening and said that he would not return them until he left for England. He told her that she had to telephone him every hour on the hour so that he knew where she was at all times. He picked her up at the end of the day, and they fed the boys and put them to bed. At that point, the abuse continued. On Wednesday, October 2, 2002, the defendant again drove J. to work and picked her up at the end of the day. After the children went to bed, the abuse continued. The alleged misconduct culminated in the sexual assault incident in the early morning hours of October 3, 2002, for which the defendant was charged.
"After J.'s testimony, several witnesses testified that J. had told them that the defendant had sexually assaulted her on October 3, 2002. The defendant had objected to all of J.'s testimony relating to allegations of his prior uncharged misconduct on the ground that it was highly prejudicial. He also objected to the testimony of attorney Kimberly Peterson, one of the constancy of accusation witnesses, again on the ground that it was highly prejudicial. The defendant did not object to the constancy of accusation testimony given by the other witnesses." State v. William C., supra, 103 Conn. 511-14.
Additional facts will be discussed below as necessary to address the petitioner's specific allegations.
Discussion
The petitioner alleges that Gannon rendered ineffective assistance of counsel. "A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . As enunciated in Strickland v. Washington, supra, 687, (the Connecticut Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. 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 . . . Put another way, the petitioner must demonstrate that his attorneys representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . In assessing the attorney's performance, [courts must] indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . 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 . . . The claim will succeed only if both prongs are satisfied . . ." (Internal citations and quotation marks omitted.) Sastrom v. Mullaney, 286 Conn. 655, 661-62, 945 A.2d 442 (2008).
Failure to address the constancy of accusation testimony
The petitioner first claims that Gannon failed to address the constancy of accusation testimony. Over the course of two days during the criminal trial, Nicole Staples, Heather Shaw, Mary Morrone, Attorney Kimberly Peterson, Waterbury Police Officer Alfredo Mauriello and Waterbury Detective Jacqueline Ortiz all provided constancy of accusation testimony that the victim told them the petitioner had sexually assaulted her. The petitioner alleges that the jury was not given a limiting instruction at the time of the testimony of each of the constancy of accusation witnesses. Thus, according to the petitioner, Gannon rendered deficient performance because he failed to ask the court to give a limiting instruction to the jury before or after the constancy testimony of each of the aforementioned constancy of accusation witnesses. Furthermore, that Gannon failed to object to the testimony of these six constancy of accusation witnesses on the grounds that the testimony was cumulative.
"`[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . .' (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 768-69, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). `Competent representation is not to be equated with perfection . . . 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.' (Citation omitted; 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)." Smith v. Commissioner of Correction, 116 Conn.App. 383, 391-92 (2009).
The Smith case is particularly instructive, as "[t]he petitioner [there argued] that his trial counsel was ineffective because he failed to object to testimony from two state police troopers which allegedly `exceeded the bounds of permissible constancy of accusation testimony . . .' [The Appellate Court] conclude[d] that the petitioner . . . failed to prove that counsel's performance was deficient.
"Both [state police troopers] testified regarding the content of their separate conversations with the victim concerning the crimes perpetrated against her by the petitioner, including details of the sexual assault. The habeas court specifically found that `the testimony may well have gone beyond the confines of Troupe.' See State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc) (holding that constancy of accusation witness may testify as to fact and timing of victim's complaint but not as to details of complaint, and, if more details needed, testimony limited to details that associate victim's complaint with pending charge, such as time and place of attack or identity of alleged attacker). Nevertheless, the court found that counsel's decision not to object to this testimony was trial strategy made on the basis of the petitioner's identity defense. The court found that there was no deficient performance because counsel `quite reasonably [could] have concluded that objecting to a state police trooper's testimony about a victim's description of a rape, even if technically hearsay, would not benefit the petitioner and could only worsen the petitioner's cause with the jury.' [The Appellate Court] agree[d] with the habeas court.
"The victim was the first witness to testify at the petitioner's trial, and she described the crimes perpetrated against her in detail. She also testified that she had relayed these details to several people, including [both state police troopers]. The victim was extensively cross-examined by defense counsel as well. The state also presented, among other evidence, the testimony of [the two state police troopers], both of whom offered explicit testimony as to what the victim had told them about the assault and kidnapping. During closing arguments, defense counsel focused on the inconsistencies between the victim's testimony and the testimony of [both state police troopers] and medical personnel, who had treated the victim following the attack.
"During the habeas trial, defense counsel testified that the petitioner had told him that he did not commit these crimes and that it must have been some third person who looked like him and who drove a similar vehicle. Counsel also testified that the petitioner refused to pursue a consent defense . . . Accordingly, the defense set forth was one of identity. However, the state had a strong case in that there was evidence that DNA analysis had confirmed that sperm found inside the victim's vagina contained genetic material that matched the DNA of the petitioner." Smith v. Commissioner of Correction, supra, 116 Conn.App. 389-91.
"[The Appellate Court's] review of the record [lead them] to agree with the habeas court that trial counsel's decision not to object to the trooper's testimony did not amount to deficient performance. The defense set forth by the petitioner was one of identity, and, because there existed DNA evidence that tended to prove that he recently had deposited sperm inside of the victim, the only reasonable strategy for defense counsel was to call into question the credibility of the victim and her version of the events in an attempt to raise some measure of reasonable doubt in the mind of the jurors. Credibility can be attacked by showing inconsistencies between statements made at trial and statements made to others, like [both state police troopers]. Accordingly, [the Appellate Court] conclude[d] that the habeas court properly concluded that defense counsel's decision not to object to the testimony of [both state police troopers] was an exercise of sound trial strategy made in light of the theory of defense set forth at trial." Id., at 392.
Turning to the instant case, the transcripts of the criminal trial show that on February 14, 2005, the first day of the petitioner's criminal trial, Staples, Shaw and Mauriello testified as constancy of accusation witnesses. On the second day of the criminal trial, February 16, 2005, Morrone, Peterson and Ortiz testified as constancy of accusation witnesses. Gannon testified at the habeas corpus trial that he was aware of the constancy of accusation witnesses, and that he maintained a file, notes, and transcripts, all of which he reviewed prior to the criminal trial. Gannon recalled that he asked for a cautionary instruction for one of the witnesses, Attorney Peterson, but was not sure if he had for the other constancy of accusation witnesses, as it was unclear to him whether the instruction given by the court applied to all other constancy of accusation witnesses who testified subsequent to the first witness and for whom the cautionary instruction was given. Gannon testified that both he and Attorney Bojka conducted the cross-examination of the six witnesses, with Gannon conducting the cross-examination of Staples, Shaw and Officer Mauriello. Thus, Attorney Bojka conducted the cross-examination of the other three constancy of accusation witnesses, Attorney Peterson, Morrone and Detective Ortiz. Attorney Bojka, whose representation is not at issue in this habeas corpus, pursued a strategy consistent with Gannon's. Bojka also did not, either prior or immediately following his cross-examination, request from the court a limiting instruction regarding the use of the testimony from Peterson, Morrone and Ortiz.
The petitioner's post-trial brief argues that Gannon never requested that the court give a limiting instruction regarding constancy of accusation testimony at the time such testimony was given. While the petitioner is correct, Gannon did make an objection based on the cumulative testimony being prejudicial. The court found the probative value outweighed any prejudice and overruled Gannon's objection. Respondent's Exhibit B1 (Tr. Feb. 16, 2005), at pg. 7. Attorney Bojka, however, also did not request such an instruction prior to or during the testimony of the witnesses he cross-examined. After closing arguments, Bojka informed Judge Cremins that no cautionary instruction had been given during any of the six constancy of accusation witnesses' testimony. Judge Cremins acknowledged that no such instruction had been given. The charge to the jury addressed constancy of accusation testimony and referenced all six constancy of accusation witnesses by name. Respondent's Exhibit B1 (Tr. Feb. 18, 2005), at pg. 19-20.
The defense strategy here, in a case involving no forensic evidence of the sexual assault, focused on accentuating inconsistencies. To that end, both Gannon and Bojka consistently employed a strategy that can only be described as reasonable. It is possible, of course, to fault both Gannon and Bojka for not requesting limiting instructions as the testimony of the six constancy of accusation witnesses was given. To not so request limiting instructions may very well rise to the level of being deficient performance, but the court need not decide the claimed ineffective assistance of counsel on that basis alone.
The court at this juncture notes that Bojka testified during the habeas corpus trial that he filed his appearance in addition to Gannon's after observing Gannon cross-examine the victim. Bojka testified that he thought Gannon's cross-examination of the victim was done poorly. The court has reviewed the cross-examination and disagrees with Attorney Bojka's assessment and description. Gannon effectively cross-examined the witness. Subsequent to Bojka's appearance in the criminal case, Gannon and Bojka evenly shared in the cross-examination of witnesses. Their roles as co-counsel for almost the entire criminal trial makes that much more remarkable that the only claimed ineffectiveness is by Gannon. Be that as it may, the court does not credit Bojka's testimony about the catalyst for his entry into the case.
Even if this court were to assume deficient performance, the petitioner must still affirmatively show that he was prejudiced thereby. The petitioner has not so shown the required prejudice. The strategy hinging on cross-examination of the constancy of accusation witnesses was reasonable. A review of the cross-examination of all six constancy of accusation witnesses shows that both counsel conducted appropriate cross-examinations. Whether or not any requests were made during the evidentiary portion of the criminal trial to have cautionary instructions given to the jury, the court did instruct the jury in its charge on the use of constancy of accusation testimony. The jury is presumed to have followed the court's instructions in the absence of a showing to the contrary. See, e.g., State v. Wallace, 290 Conn. 261, 276, 962 A.2d 781 (2009) ("[t]he jury is presumed, in the absence of a fair indication to the contrary, to have followed the court's instructions" [internal quotation marks omitted]). The petitioner has failed to make such a showing.
As to the aspect of the claimed deficiency that Gannon did not object that the constancy of accusation testimony was cumulative, the respondent, citing to State v. Zoravali, 34 Conn.App. 428, 441, 641 A.2d 796 (constancy of accusation testimony of seven witnesses not prejudicially cumulative because "all of the testimony pertained to different statements made by the victim to different people at different times"), cert. denied, 230 Conn. 906, 644 A.2d 921 (1994), correctly notes that the victim spoke to these six witnesses at different times.
Zoravali is cited to in the Appellate Court's decision on the petitioner's direct appeal. The petitioner raised a claim on direct appeal pertaining to Attorney Peterson's constancy of accusation testimony.
"A trial court's broad discretion to exclude evidence more prejudicially cumulative than probative certainly encompasses the power to limit the number of witnesses who may be called for a particular purpose . . . In excluding evidence on the ground that it would only be cumulative, care must be taken not to exclude merely because of an overlap with the evidence previously received. To the extent that evidence presents new matter, it is obviously not cumulative with evidence previously received . . ." Id., at 440-41. "The constancy of accusation testimony presented in this case was not cumulative. Although all of the testimony overlapped, in the sense that it arose from the same incident, all of the testimony pertained to different statements made by the victim to different people at different times. Rather than prejudicially cumulative, therefore, the evidence covered new matter by demonstrating that the victim had reported the abuse constantly and consistently . . ." (Citations omitted.) Id., at 441.
In the instant case, similar to Zoravali, the testimony of the constancy of accusation witnesses may have overlapped in the sense that the all the testimony arose of the identical sexual assault. Similarly, the victim here made statements to different people at different times. Such distinct statements given at different times to different individuals are, contrary to the petitioner's assertions, permissible evidence that covers new matter, is not prejudicially cumulative, and therefore permitted to show that the victim was both constant and consistent in reporting the sexual assault.
It is noteworthy that the petitioner raised a claim on direct appeal pertaining to constancy of accusation testimony by the victim's attorney from the dissolution of marriage case, Attorney Peterson. The Appellate Court's discussion, albeit lengthy, is worth repeating in full.
"`The constancy of accusation doctrine traces its roots to the fresh complaint rule . . . [t]he narrow purpose of [which] was to negate any inference that because the victim had failed to tell anyone that she had been [sexually assaulted], her later assertion of [sexual assault] could not be believed . . . Because juries were allowed — sometimes even instructed — to draw negative inferences from the woman's failure to complain after an assault . . . the doctrine of fresh complaint evolved as a means of counterbalancing these negative inferences. Used in this way, the fresh complaint doctrine allowed the prosecutor to introduce, during the case-in-chief, evidence that the victim had complained soon after the [sexual assault]. Its use thereby forestalled the inference that the victim's silence was inconsistent with her present formal complaint of [assault] . . . In other words, evidence admitted under this doctrine effectively served as anticipatory rebuttal, in that the doctrine often permitted the prosecutor to bolster the credibility of the victim before her credibility had first been attacked . . . The fresh complaint doctrine thus constituted a rare exception to the common-law rule that prohibited rehabilitative evidence in the absence of an attack on the witness's credibility.' (Citations omitted; internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 539, 915 A.2d 822 (2007).
"Claims concerning the admission of the details of a sexual assault victim's complaint for corroborative purposes do not carry constitutional implications and are purely evidentiary in nature. State v. Samuels, 273 Conn. 541, 558, 871 A.2d 1005 (2005). `It is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.' (Internal quotation marks omitted.) State v. Gonzalez, 272 Conn. 515, 527, 864 A.2d 847 (2004). Moreover, the `trial court has broad discretion in ruling on the admissibility . . . of [constancy of accusation] evidence . . . [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.' (Internal quotation marks omitted.) State v. McKenzie-Adams, supra, 281 Conn. 538-39.
"At trial, over defense counsel's objection that the evidence was cumulative[] and prejudicial, the court allowed Peterson to testify that on October 3, 2002, [the victim] told Peterson that the defendant had sexually assaulted her that morning. Peterson then testified that after [the victim] made the statement to her, Peterson brought [the victim] to the police station. In allowing this testimony, the court determined that the evidence was admissible as constancy of accusation testimony and that the prejudicial effect of the evidence did not outweigh its probative value.
"Prior to Peterson's testimony, three other witnesses had testified at trial, without objection, that [the victim] had informed them that the defendant had sexually assaulted her." in State v. William C., 103 Conn. 508, 522 n. 7, 930 A.2d 753, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007).
"On appeal, the defendant attacks the court's application of the balancing test with respect to this evidence. On the probity side of the scale, the defendant argues that the value of Peterson's testimony was minimal because there was little delay between the claimed sexual assault and [the victim's] complaint to the police, and that the delay was explained adequately by [the victim] and the other witnesses. The defendant further argues that the evidence offered little probative value because three constancy witnesses testified prior to Peterson.
"On the prejudicial side of the scale, the defendant argues that the evidence was highly prejudicial because of its cumulative effect. The defendant further claims that the jury reasonably could have inferred that Peterson, as an officer of the court, would not have facilitated [the victim's]s report of rape if she doubted [the victim's] credibility. Finally, the defendant argues that the prejudicial effect was compounded because the court did not provide the jury with a specific limiting instruction on the use of constancy evidence after Peterson testified, thereby maximizing the risk that the jury would use the testimony as substantive evidence of the defendants guilt. [The Appellate Court was] not persuaded.
"[The Appellate Court's] review of the record reveals that the court did not abuse its discretion in concluding that the probative value of Peterson's testimony outweighed its prejudicial effect. Peterson testified only as to the fact and timing of [the victim's] complaint and the details necessary to associate [the victim's] complaint with the charges against the defendant. Further, her testimony related to a complaint made by [the victim] that was separate from the other constancy witnesses, the testimony of whom the defendant neither objected to at trial nor has taken issue with on appeal. See Id., 542-44 (testimony of three constancy witnesses that victim provided three separate accounts of sexual assault not prejudicially cumulative); State v. Parris, 219 Conn. 283, 294, 592 A.2d 943 (1991) (constancy of accusation testimony of four witnesses not prejudicially cumulative because each witness testified with respect to `a different statement that the victim had made to a different person at a different point in time [and] therefore, the evidence covered new matter by demonstrating, as was its relevant purpose, that the victim previously had reported the incident she described on direct examination in a constant and consistent fashion'); State v. Zoravali, 34 Conn.App. 428, 441, 641 A.2d 796 (constancy of accusation testimony of seven witnesses not prejudicially cumulative because `all of the testimony pertained to different statements made by the victim to different people at different times'), cert. denied, 230 Conn. 906, 644 A.2d 921 (1994).
"With respect to how much the lack of a delay in reporting affected the probity of the evidence, we disagree with the defendants contention that such a delay was explained adequately by [the victim], thereby obviating the need for Peterson's testimony. Indeed, on cross-examination of J., the defense sought to capitalize on [the victim's] lack of an accurate and prompt reporting of the incident to the police. Moreover the defense used [the victim's] disclosure to Peterson during the interim period between the sexual assault and her report to the police to help establish a motive to prevaricate on the part of [the victim] . . .
"Similarly, the defendant's claim that Peterson's credibility was enhanced because she is an officer of the court is without merit. There is, in the least, an equal inference that unlike an ostensibly neutral police officer, Peterson was an interested party acting as [the victim's] advocate, which would serve to lessen her credibility in the eyes of the jury. As the defense pointed out on cross-examination of Peterson, the defendant's incarceration would bolster [the victim's] custody case, and Peterson appeared in court at the defendant's arraignment and advocated for the court to set a higher bond.
"Finally, the defendant's argument that the lack of a limiting instruction expressly identifying Peterson as a constancy witness multiplied the harm caused by the evidentiary impropriety relating to her because the jury was likely to have considered her testimony for the truth of the matter asserted is without merit. First, the court did give a general instruction on the use of constancy testimony in its charge to the jury. Second, the defendant did not object to the jury instructions at trial or request the limiting instruction that he now claims the court should have given. Therefore, the unpreserved claim of instructional error with respect to Peterson is not reviewable. See State v. Samuels, supra, 271 Conn. 566-67; see also Practice Book § 60-5." State v. William C., supra, 103 Conn. 521-25.
Based on the foregoing, this court is hard-pressed to conclude that the petitioner has met his burden of proof and shown that Gannon rendered ineffective assistance of counsel by failing to address the constancy of accusation testimony. First, Gannon only conducted the cross-examination of the first three of the six such witnesses. The court's charge to the jury properly instructed them on the use of constancy of accusation testimony, which the jury is presumed to have followed in the absence of a clear and contrary showing, which has not been made. See, e.g., State v. Sauris, 227 Conn. 389, 403, 631 A.2d 238 (1993), overruled in part on other grounds by Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 309, 852 A.2d 703 (2004) ("Jurors are presumed to have followed the instructions of the court as to the law in the absence of a clear indication to the contrary.") Lastly, the six witnesses all provided constancy of accusation testimony regarding the victim informing them at different times of the sexual assault. It was up to the jury to resolve any inconsistencies in their testimony, and it is not within this court's province to second-guess the resolution by the jury of any such inconsistencies, if they exist at all, against the petitioner.
Failure to call witnesses at trial to impeach the credibility of the petitioner's ex-wife
The petitioner's next claim is that Gannon rendered deficient performance because he failed to call witnesses at trial to impeach the victim's credibility. More specifically, the petitioner alleges that at the petitioner's criminal trial, the victim testified that the sexual assault occurred on Thursday, October 3, 2002, in the morning. Credibility was the central issue at the petitioner's criminal trial, as only the petitioner and the victim were present at the time of the sexual assault.
Prior to the petitioner's criminal trial, he and the victim tried the dissolution of marriage case before Judge Munro. At the dissolution of marriage trial, family relations counselor Sylvia Richard testified that the victim was confused and never really sure when the sexual assault occurred, and that she gave conflicting dates as to when the sexual assault occurred. Additionally, Richard testified that she indicated in her report that she was concerned about the victim's veracity.
Dr. Sidney Horowitz, a licensed psychologist, was ordered by the family court to perform psychological evaluations on the petitioner and the victim during the course of the dissolution of marriage case. At the dissolution of marriage trial, Dr. Horowitz testified that the victim told him that the petitioner sexually assaulted her at knife-point in October 2002. At the petitioner's criminal trial, the victim testified that she did not tell Dr. Horowitz that the petitioner had a knife when he sexually assaulted her on October 3, 2002.
Based upon the foregoing, the petitioner asserts that Gannon failed to call Sylvia Richard and Dr. Horowitz as witnesses and, through their testimony, attack the victim's credibility. As to Dr. Horowitz, the petitioner's allegations center on the fact that Horowitz testified in dissolution of marriage trial that the petitioner sexually assaulted the victim at knife-point. With Ms. Richard, the allegations focus on the victim inconsistently indicating different dates on which the sexual assault occurred. According to the petitioner, at a trial where credibility was the central issue, a reasonably competent defense attorney would have called witnesses to attack the victim's credibility. The petitioner also avers that but for Gannon's failure to call these two witnesses, there is a reasonable probability that the outcome of the criminal trial would have been different in that the jury would have been presented with reasonable doubt as to the sexual assault allegations.
Dr. Horowitz testified during the dissolution of marriage trial that he evaluated both the petitioner and the victim. Petitioner's Exhibit 4, at pg. 120. Judge Munro asked Horowitz about his interview with the victim, which was conducted prior to the petitioner's interview: "In the background information, it says: `in October of 2002, she made allegations that Mr. Coleman had sexually assaulted her at knife-point.'" Id. Judge Munro then asked Horowitz about the petitioner's interview: ". . . where it says: the history to this case is long . . .: in October of 2002, his estranged wife made allegations that he had sexually assaulted her at knife-point." Id., at pg. 121. Judge Munro asked Horowitz where he had obtained the information about the sexual assault occurring at knife-point that was in both the petitioner's and the victim's histories of the case. Prompted by Judge Munro's question, Horowitz reviewed his notes and other papers. Id., at pgs. 121-22. Horowitz then indicated the following to Judge Munro: "Now, it's unclear to me and it could have come in a telephone call that I had with Sylvia Richard because I don't have it in my note from either [the victim] or [the petitioner] as to that specific month and year." Id. at pg. 122.
Judge Munro continued pressing Horowitz about the source of his notation that the sexual assault occurred at knife-point. Horowitz verbatim read from his notes that indicate the petitioner beat the victim, that she didn't feel safe, and that he insisted she participate in three-way sexual encounters and rough sex. Id. Judge Munro then noted that Horowitz did not know who told him about the sexual assault occurring at knife-point. Horowitz answered as follows: ". . . I don't know who — I know they both went through incredible detail of — lurid details of sexual escapades and they both discussed whether there was a knife or not a knife present. Mr. Coleman said there was not. [The victim] said there was. But I don't recall the specifics of that." Id. at pg. 123. That ended the colloquy about the knife. Judge Munro's lengthy memorandum of decision does not mention or reference the testimony about the knife.
Ms. Richard, a Family Relations Counselor at the time of the dissolution of marriage trial, testified during that trial that the victim was unable to accurately provide her with the specific day on which the sexual assault occurred. Responding to questions by the petitioner, who represented himself in the dissolution of marriage action, Richard testified that: ". . . when [she] talked to [the victim], she was never really sure of what day she had been sexually assaulted. One time it could have been this night and then later she told me it had been that Thursday, late that Thursday night of the same week or early Friday morning and sometime earlier than that, and it could have been this Monday. I don't remember the particular day, but the dates had changed, and she was confused in terms of recollecting when specifically she had been sexually abused and with that particular abuse leading to [the petitioner's] arrest." Petitioner's Exhibit 1, at pg. 29.
Upon further questioning by the petitioner about the information provided to her, Richard testified that she could ". . . remember many things [the victim] told [her]. I may not know the exact day she told me because I had files for a year and there's a big box full of things, and, so, although, I know the case very well, but often times when I would interview [the victim], information wouldn't be pinned to a specific date and time, and, so, that's why I'm being so vague in that regard." Id. The petitioner then asked Richard to review her notes during a break to determine if her notes referenced a specific date.
Somewhat later in the proceeding, the petitioner again questioned Richard about the inconsistent dates and times provided by the victim to Richard. Id. at pgs. 40-44. Richard also testified that she and Horowitz communicated about the information provided to each of them by both the petitioner and the victim, and that there were concerns about the victim's inconsistent statements to Richard and Horowitz. Although Richard testified that it was possible the victim was untruthful with the information she provided to her or Horowitz, Richard also emphasized that different people deal with trauma in different ways, that the victim may have been employing defense or coping mechanisms. Richard also acknowledged that the victim could have become confused about the dates and times or forgot what she had previously told Richard, thus resulting in conflicting or inconsistent information.
After the morning recess, the petitioner again asked Richard about the date and time discrepancies. Id. at pg. 60. Richard's testimony again stressed that the victim was not sure precisely when the sexual assault occurred. The victim told Richard toward the end of her study that she believed it occurred late Thursday evening or early Friday morning. Id. However, the victim had earlier told Richard it was Wednesday night or early Thursday morning, which also was the timeframe the victim testified to during the dissolution of marriage trial. Id.
During the criminal trial, Gannon questioned the victim on cross-examination about the sexual assault occurring at knife-point. Gannon asked the victim whether she had told Horowitz that the sexual assault had in such a manner. The victim denied having told Horowitz that the knife had used during the sexual assault. Respondent's Exhibit B1 (Tr. Feb. 15, 2005), at pgs. 91-92. Gannon also questioned the victim on cross-examination about the time discrepancies. Id., at pgs. 92-93. The victim recalled telling Richard, who she acknowledged meeting with on more than ten occasions over the course of a year, that the sexual assault had occurred on Thursday. She did not recall, however, telling Richard that the assault instead happened on Wednesday or Friday. At that time, Gannon also asked the victim about having told Amy Kuell that the sexual assault had occurred one week prior to the petitioner's arrest, instead of a day or two prior.
Both Dr. Horowitz and Sylvia Richard testified during the habeas corpus trial. Horowitz testified that he met with the victim on four occasions, first on June 20, 2003 and later on diverse dates in July 2003. Horowitz was aware that the petitioner had a criminal case pending at the time of the dissolution of marriage case, and that the criminal case charged him with spousal rape. According to Horowitz, the criminal allegations were discussed in passing. On cross-examination, Horowitz indicated that his notes do not indicate that the petitioner sexually assaulted the victim at knife-point, and that he would have put this in his notes. Horowitz further testified that he testified from memory during the dissolution of marriage trial and not from his notes, that he was unsure where the knife comment originated from, but that it may have come from Family Relations (i.e., Richard).
Judge Munro's memorandum of decision notes that "[o]n June 11, 2003, a psychological evaluation was ordered to be performed on the two parents by Dr. Sidney Horowitz." Coleman v. Coleman, Superior Court, judicial of Middlesex, Regional Family Trial Docket at Middletown, Docket No. FA02-0174562 (August 5, 2004, Munro, J.) ( 2004 Ct.Sup. 11232-a).
Ms. Richard testified that she was aware of the pending criminal charges at the time she met separately with the petitioner and the victim. Richard further testified that either Gannon or his investigator contacted her about testifying during the criminal trial, and that she met with either Gannon or the investigator at Gannon's office to discuss her testimony. Richard was prepared to testify and was present at the courthouse, even though she had not been subpoenaed to be at the criminal trial. Richard indicated that she and the victim may have spoken as often as fifteen times in about as many months prior to the dissolution of marriage trial. According to Richard, while the victim identified different dates on which the sexual assault occurred, she never wavered on whether she had been sexually assaulted.
Gannon testified before this court about his trial strategy. Gannon was aware of the dissolution of marriage trial and testified that he had read the transcripts of that trial several times. Although Gannon was aware of the reference the sexual assault having occurred at knife-point, he was concerned about potentially opening the door to other acts of humiliation and dominance that would cast the petitioner in a less than positive light and assure his conviction. The jury in the criminal trial deliberated for four or five days before returning with the verdicts. Any acts of depravity wrought by the petitioner on the victim, arguably, could only have brought about a faster and more assured verdict. Stated somewhat differently, Gannon concluded that the potential prejudice to the petitioner's defense far outweighed any possible benefit the conflicting testimony about the knife would bring to the jury. Hence, counsel's decision was one involving trial strategy.
The Supreme Court has noted that note that ". . . in the context of a claim for ineffective assistance of counsel, `[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.' State v. Talton, 197 Conn. 280, 297, 497 A.2d 35 (1985)." Johnson v. Commissioner of Correction, 288 Conn. 53, 64, 951 A.2d 520 (2008). Clearly, if the claimed ineffectiveness arises out of the failure to call one or more witnesses to impeach other testimony, the foregoing standard requires a showing that the testimony would have impeached another witness's testimony sufficiently to undermine their credibility.
Based upon all the foregoing, the court cannot conclude that the failure to call Dr. Horowitz and Ms. Richard, and through their testimony attempt to impeach the victim's testimony, was deficient performance. It is entirely speculative whether the imprecise testimony by Horowitz and Richard would have had any impact on the jury's verdicts. The evidence presented in this habeas corpus proceeding has not demonstrated that the testimony from Horowitz and Richard would have sufficiently undermined the victim's credibility to any extent that undermines this court's confidence in the outcome of the criminal trial. Gannon's decision to rely on cross-examination of the witnesses who did testify during the state's case was a sound strategic decision entitled to a strong presumption of being within the wide range of reasonable professional assistance. The petitioner has not rebutted this strong presumption, nor has the petitioner undermined this court's confidence in the outcome of the criminal trial.
Failure to object to certain testimony
This third alleged failure centers on the petitioner's former wife providing testimony during the criminal trial that she lived in a shelter a few years prior because the petitioner was physically abusive to her. The petitioner asserts that Attorney Gannon failed to object to this testimony as unresponsive, irrelevant and prejudicial. A reasonably competent defense attorney, according to the petitioner, would have objected to this testimony, and the failure to do so prejudiced the petitioner because the jury heard the testimony of prior misconduct.
Gannon, as well as Attorneys Bojka and Farver did not present any testimonial evidence regarding this claim. Attorney Farver did not review the criminal trial transcripts, police reports or witness statements in preparation for his testimony, nor did he speak with Gannon. Thus, the only evidence presented in support of this claim is the transcript of the criminal trial.
The petitioner's post-trial brief, however, argues as follows: "Although not specifically addressed during the habeas trial, the record and current rules of practice clearly support a finding that a reasonably competent defense attorney would have objected to the testimony that the petitioner's ex-wife lived in a shelter due to the petitioner being physically abusive years prior. If Mr. Gannon had objected to this testimony, there is a reasonable probability that the court would have struck the testimony as being non-responsive, irrelevant, prejudicial or inadmissible evidence of other wrongs or acts to prove character. The petitioner has been prejudiced by Attorney Gannon's failure to object to this testimony in that the jury heard extremely prejudicial testimony of prior misconduct, specifically, a history of domestic abuse which would tend to bolster his ex-wife's allegations and have a negative impact on the petitioner's credibility." Brief, at pg. 23.
The respondent argues that the claim is abandoned and should be dismissed. Additionally, the respondent disagrees with the petitioner that the testimony at issue was non-responsive. The disputed testimony was, according to the respondent, probative, relevant and admissible because it went to the victim's state of mind. Lastly, the respondent asserts that "the decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82, as cited in Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 801 [, 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)].
"The law presumes that counsel is competent until evidence has been introduced to the contrary. Strickland v. Washington, [ supra, 466 U.S. 689]. It is elementary jurisprudence that the determination of whether counsel's conduct was ineffective is a peculiarly fact-bound inquiry. Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991)." (Emphasis added.) Lapointe v. Commissioner of Correction, 67 Conn.App. 674, 679, 789 A.2d 491, cert. denied, 259 Conn. 932, 793 A.2d 1084 (2002). The petitioner here has presented no evidence to rebut this presumption. Furthermore, a review of the victim's testimony shows that it was provided shortly after the victim testified she was anally raped by the petitioner, who then threatened to either kill her if she told anyone or permanently preclude the victim from having contact with their two sons. The victim testified that she believed these threats because of the petitioner's past physical abuse that had led her to live in a shelter. Respondent's Exhibit B1 (Tr. Feb. 15, 2005), pgs. 51-52. The victim's state of mind clearly was at issue.
The victim mentioned the shelter at least one other time, when she testified about contacting the police and being referred to an entity named "Safe Haven." Respondent's Exhibit B1 (Tr. Feb. 15, 2005), at pg. 80. The victim explained to the police that she had been in a shelter before.
Based upon the foregoing, the court finds as entirely unsubstantiated the claim Attorney Gannon rendered deficient performance because he failed to object to testimony. The petitioner has not rebutted the presumption that counsel's performance was competent in this regard.
Failure to elicit certain testimony
The petitioner's final claim is that Gannon rendered ineffective assistance of trial counsel for failure to elicit certain testimony. More specifically, the petitioner alleges that at the criminal trial, the victim testified that the petitioner would not allow her to drive her car to work the entire week of the sexual assault, and that he drove her to work Tuesday, October 1, 2002 to Friday, October 4, 2002. At the dissolution of marriage trial, there was testimony that the victim's car broke down on Saturday, September 28, 2002, and was inoperable for the majority of that week. There also was testimony at the dissolution of marriage trial that the petitioner purchased a battery for the victim's car on Tuesday, October 1, 2002, which did not work, and then purchased a different battery for the victim's car on Wednesday, October 2, 2002. There was testimony at the same trial that the petitioner drove the victim to work in his car since her car was inoperable. Judge Munro, who presided over the dissolution of marriage trial, found in her August 5, 2004 Memorandum of Decision that the evidence regarding the victim's car being inoperable was credible.
Judge Munro's decision does not indicate the battery did not work or was inoperable. Instead, her decision states that the petitioner purchased a battery and discovered that it was the wrong one.
The petitioner alleges, based upon the foregoing, that Gannon failed to elicit testimony and present evidence that the victim's car was inoperable for the majority of the week of the sexual assault. According to the petitioner, reasonably competent criminal defense counsel would have elicited this evidence. The petitioner argues there is a reasonable probability that, but for Gannon's failure, the outcome would have been different in that the jury would have been presented with evidence contradicting the victim's testimony.
The petitioner's post-trial brief then somewhat expands on this claim based on the limited evidence presented at the habeas corpus trial that supplements the transcripts of the dissolution of marriage trial. Gannon testified that he was very familiar at the time of the criminal trial with the transcripts of the dissolution of marriage trial, having read them several times. Gannon's strategy at trial was to cross-examine effectively witnesses to underscore inconsistencies and, thereby, undermine their credibility and reliability.
Gannon recalled the issue of the car battery and that the petitioner showed or provided the purchase receipt to him. Gannon also testified that it potentially could be important to cross-examine the victim regarding her car's operability the week of the sexual assault. However, Gannon could not recall at the habeas corpus trial how the issue of the car's operability was important to the criminal case.
The respondent's post-trial brief argues that "[r]egardless of whether her car was operable or inoperable, the victim's testimony was that the petitioner did not allow her to drive to work that week. The fact that the petitioner drove her to work daily was evidence of the continuing pattern of domination and control that he manifested prior to and subsequent to the sexual assault. The operability of her car was irrelevant." Brief, at 12. The respondent further underscores the petitioner's efforts to dominate and control the victim by highlighting the fact that, although the petitioner's car was operable, he persisted in driving the victim instead of permitting her access to his car.
The petitioner's claim and arguments in support thereof regarding the operability of the victim's car elevate the importance of the operability to an almost talismanic level. It would be an understatement to say that the petitioner overstates the importance of operability when he argues that, but for Gannon's failure to elicit this testimony, the outcome of the trial would have been different. The court fails to discern the importance of the operability of the victim's car. The victim's testimony in the dissolution of marriage trial and the testimony in the criminal are not inconsistent and can be both easily and readily reconciled.
Any cross-examination by Gannon on this issue would have had marginal, if any, impact on the victim's credibility. In fact, such questioning could have backfired, as the petitioner disallowing use of the car was not dependent on the operability. Operability of the car, when combined with the petitioner exerting control and not permitting use of an operable car, would emphasize that much more the petitioner's need to control and dominate the victim. Although Attorney Farver opined that it would have been significant that Gannon elicit such testimony, and that there was no downside, this court disagrees for the reasons stated above. Accordingly, the court assigns no weight to Attorney Farver's expert opinion, which was not premised on any familiarity of either dissolution of marriage and criminal trial transcripts, but instead was based on hypotheticals.
See, e.g., State v. Ross, 273 Conn. 684, 707, 873 A.2d 131 (2005) ("The general rule is that a finder of fact `is free either to accept or reject, in whole or in part, the evidence presented by the . . . witnesses . . . [T]he credibility of the . . . expert and lay witnesses, and the weight to be given to their testimony . . . is a matter committed to the sound judgment and common sense of the trier of fact.'")
The court fails to see either the logic, rationale or merit to the petitioner's final claim. The court finds that the petitioner has neither proven that Gannon rendered deficient performance by failing to elicit testimony from the victim about the operability of her car, nor that the petitioner was prejudiced thereby.
Conclusion
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.