Opinion
No. CV 00-0435887
December 11, 2003
MEMORANDUM OF DECISION
This habeas corpus writ (HC) commenced on February 25, 2000 on grounds of ineffective assistance of counsel. The petitioner (McPhee) amended his petition on September 13, 2002 to add a second count of actual innocence. The original criminal trial was marked into evidence in this case. Habeas Transcript (HT) as Exhibit 7.
Our appellate court stated the following factual background in State v. McPhee, 58 Conn. App. 501, 503.
The jury reasonably could have found the following facts. Between 1993 and 1995, the defendant lived in Bristol with his wife and their child, S, and his wife's three children from a previous marriage, M, C and D. During this time, the defendant subjected M and C to sexual contact by playing what was called "the ice game." The ice game was played one or more times each month, and began when M was seven years old and continued until she was nine years old. The defendant would ask one of the children to retrieve a tray of ice from the freezer, and then would take a piece of ice and put it in their underwear. The defendant would rub the ice around M's vagina and then place it inside her vagina until the ice melted. After the ice melted, the defendant would place his finger inside her vagina. The defendant also would place a piece of ice in C's underwear and rub it around his penis until the ice melted, at which time he would fondle C while pretending to be trying to find the ice.
The defendant played the ice game with all four children while their mother was in the same room or an adjacent room. M and C did not like the ice game and hated the defendant. The defendant also would hug and kiss M good night and touch his tongue to her lips when he did so.
The children did not complain to anyone about the ice game during the three years that the defendant subjected them to it because they were afraid of reprisal. M mentioned the behavior to a cousin who in turn told her mother, M's aunt. The aunt spoke privately with M about the ice game and subsequently reported the conduct to the Department of Children and Families.
M and C did not testify in the habeas trial. D did testify at the habeas trial. The petitioner is the father of S, born to his wife Joyce.
The petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a); two counts of sexual assault in the third degree, General Statutes § 53(a)-72(a)(1) and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. Petitioner was sentenced to an effective sentence of a term of twelve (12) years suspended after eight (8) and five (5) years concurrent for the lesser counts in the case [Para. 3 of First Count].
The petitioner alleges in Count One an ineffective assistance of counsel. That his attorney at the original criminal trial called only two witnesses; his mother-in-law, Irene Allen, and Dr. Hertzler Knox, a pediatrician who had seen the children on a few occasions. McPhee claims that his attorney at the criminal trial failed to call witnesses whose testimony could have created reasonable doubt in the minds of jurors. The petitioner listed Joyce Schenkel McPhee, the complainant's mother and his wife that testified in the HT. Attorney Goodrow, who was assigned as the public defender in his original criminal trial was assisted by Attorney Godine and consulted with John Watson at Part A, PD because she felt he was a "brilliant fellow." She also worked with a very competent investigator in the criminal case, Bob Bushey, a retired Hartford police detective whose opinions she respected. Although this McPhee case was Goodrow's first sexual assault trial she had worked on sexual assault cases at pre-trial stages. Goodrow discussed the case with McPhee at four pre-trial conferences on at least six separate meetings as well as the day of trial including jury selection. Bushey met with Joyce and McPhee at their home on at least one occasion. (HT August 14, 2003, pgs. 31-34.) Goodrow also met with various witnesses as testified with respect to each claim in the petition. Goodrow did not make decisions flippantly but upon consultation with colleagues. The only decision she did not make as to the witnesses to call at trial was that of Mr. McPhee because it was his decision to make. (HT August 14, 2003, pg. 88.)
Attorney Goodrow spoke with Joyce and concluded that Joyce was not very candid with her relating to McPhee's discipline of the children and the incident of domestic violence towards her by McPhee. Goodrow reviewed six (6) domestic violence reports with Joyce including a sworn statement of her (Exhibit A). Goodrow felt that Joyce would come across as someone she was trying to protect, McPhee and it would be difficult to convince a jury if they felt he was a wife beater. She discussed her decision with John Watson that it would be a risk to call Joyce in this case. Even when confronted in the habeas trial, Joyce denied being hit or abused, later to admit on cross examination that she had been (HT August 14, 2003, pg. 115; pgs. 153-63) when discussing discipline with Joyce. Although McPhee denied hitting the children with a belt Joyce said he did about twice a month but did it with their pants on and stopped after attending parenting skills counseling. Joyce was reluctant to testify in the criminal trial. (HT August 5, 2003 pg. 146-83.)
Karl Schenkel, the biological father of C and M it is claimed should have been called. Karl Schenkel was not called for the habeas trial. The respondent argues that the habeas court has no evidence concerning his relevance in this case. Goodrow did subpoena Karl Schenkel who declined to speak with her before the trial. Goodrow feared that putting him on the stand might lead to opening up the files of DCF. The allegations as to Karl Schenkel in the habeas case as to his discharge from the Marines and his financial behavior is not supported by any evidence in this habeas case. McPhee asserts that failure to call a representative of the Support Enforcement Division of the Superior Court to testify to Karl Schenkel's arrearages constituted ineffective assistance. Goodrow testified that she did not want to open the door for DCF files to come in and that insofar that a representative was not called in the original criminal case and the habeas case that this court has little or no evidence to determine if there is any impact to the result in both cases. Failure to call a neighbor Mary Manocchio in the criminal case had no value since any sexual acts were done in the home and not in company of others than the children and Joyce playing the ice game. Testimony of D or S was not used in the criminal case because Bushey, the investigator, although he reported that D and S would have denied any inappropriate touching that as trial strategy Goodrow did not want the jury to get any idea the children were being manipulated by the defense. Also D had told Goodrow he had been struck by a belt which was in direct conflict to the testimony of McPhee. S was much too young to be called as a witness in the criminal case since he was born on September 26, 1990. In paragraph 6 of the First Count McPhee claims ineffective assistance of counsel Goodrow for not calling Traci LaLiberte, a DCF social worker. The court cannot determine if such testimony would have had any impact on the habeas hearing or whether calling her at the criminal trial might have opened up the "bad acts" of McPhee in the DCF records. Failure to call Attorney Cochran and DCF records would open the door of bad acts and domestic violence.
Goodrow discussed all the information with Attorney John Watson and they felt that they could not pick and choose from DCF records evidence that would affect favorably for McPhee. Goodrow was not willing to risk the introduction of the file which McPhee wanted introduced. (HT August 14, 2003, pgs. 90-96, 126-28.) Billie King was not a witness in either case. Accordingly the court has no evidence relevant to this habeas hearing. Exhibit 1 was introduced authored by Wanda Serrano-Lassiter only to set out the action taken by detective Palmer and not for the truth or conclusions reached in the letter. The doctors sought to be called by the petitioner would not have impacted on his claim for ineffective assistance or actual innocence in this case.
Dr. Yordan performed a physical examination and was called upon to make an assessment. (HT/05, pg. 11.) Dr. Yordan testified it was a normal examination except for the minimal erythema, the redness that she saw. Dr. Yordan never discussed the incidents with M and her only role was to do a physical examination. Dr. Yordan was not called upon to do anything other than a physical examination. On further examination M did not exhibit any physical characteristics of abuse other than the redness. There was no discharge or bleeding.
To a question "would your findings be consistent with someone who had not been sexually abused" Dr. Yordan answered yes. The court allowed her in this habeas trial to give an opinion based upon M's testimony in the original criminal case of either having an ice cube or finger inserted in her vagina at least once or twice a month for three and one half years with an alleged insertion four times during each occurrence for a total of 144 insertions or until the ice melted. Dr. Yordan was not able to give an opinion as to sexual abuse; Dr. Yordan testified she could not give an opinion because of an unknown factor being the force of penetration. Dr. Yordan could not give an opinion one way or the other.
On cross examination Dr. Yordan admitted that her examination was equally consistent with M being abused. Dr. Yordan admitted that sometimes the form of abuse in the manner it is conducted does not leave any physical evidence. (HT August 5, pg. 21-17.)
Dr. Yordan's examination could not exclude or equivocate sexual abuse.
McPhee wanted to testify at the original criminal trial but was advised against it by Goodrow. Judge Fasano canvassed McPhee about taking the stand in his own defense and McPhee assented to the recommendation of Goodrow.
As to the First Count the petitioner has the burden of proof to establish ineffective performance.
To establish ineffective performance, a petitioner must show that counsel's representation "fell below an objective standard of reasonableness"; in Strickland v. Washington, 104 S.Ct. at 1064-65, thereby overcoming the "strong presumption that the counsel's conduct [fell] within the wide range of reasonable professional assistance." Cooper v. Commissioner, 53 Conn. App. At 496, quoting Stafford v. Warden, 223 Conn. 180, 193 (1992). To be constitutionally ineffective, counsel must have made errors so serious that it cannot be said that he or she was functioning as the counsel guaranteed by the sixth amendment. Copas v. Warden, 30 Conn. App. 677, 683 (1993), quoting Strickland v. Washington, 104 S.Ct. at 2064.
Failure to call the witnesses wanted by McPhee did not result in any prejudice to the petitioner in this case. The petitioner has not met the two-prong test recited in Strickland.
To satisfy the first prong of the Strickland test, the petitioner must show that his counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. Bunckley v. Commissioner of Correction, 222 Conn. 444, 455 (1992). Counsel's representation must be shown to have fallen below an objective standard of reasonableness considering all of the circumstances. Strickland v. Washington, 466 U.S. at 687-88. The right to counsel, however, is the right to effective assistance and not to perfect or error-free representation. Commissioner of Correction v. Rodriguez, 222 Conn. 469, 478 (1992).
In order to satisfy the second prong of the Strickland test, the defendant must prove that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Bunckley v. Commissioner of Correction, 222 Conn. at 455. This second prong is satisfied if the petitioner can demonstrate that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Siano v. Warden, 31 Conn. App. 94, 98, cert. denied, 226 Conn. 910 (1993).
Count Two alleges that the petitioner also claims that he is actually innocent. In Sommerville v. Warden, 229 Conn. 397, 422 (1994), it was held that a claim of actual innocence is cognizable by way of a petition for habeas corpus.
Sommerville did not decide as to the standard of proof but held that the standard is higher than a petition for new trial. In Miller v. Commissioner of Correction, 242 Conn. 745 (1997), the court held that the proper standard for actual innocence is twofold; the petitioner must establish by clear and convincing evidence taking into account both the evidence adduced at the original trial and the evidence adduced at the habeas trial that the petitioner is actually innocent and that no reasonable fact finder would find the petitioner guilty of the crime. Id. at 747. The standard of proof of actual innocence is quite high. Based upon the evidence adduced at the original trial and the evidence at the habeas trial this court is not clearly convinced that a fact finder would find the petitioner not guilty.
The court finds that McPhee has not proven that his attorney at the original trial was ineffective or that she fell below the standard of reasonable competence expected of attorneys with ordinary training and skill in criminal law, Strickland v. Washington, 466 U.S. 687-88, or that her representation was so substandard that the result would have been different.
The evidence presented in the habeas trial does not establish the necessary burden of proof of actual innocence.
Accordingly, petition is denied.
FRANK S. MEADOW, JUDGE TRIAL REFEREE.