Summary
In Provost itself the court found a Brady violation because when the prosecutor testified at the habeas trial he stated "I don't think I subpoenaed any DCF records at all in this case."
Summary of this case from Billington v. WardenOpinion
No. CV 00-0802785 S
December 8, 2003
MEMORANDUM OF DECISION
This is an unusually long and complex habeas case. On October 27, 2000, Richard E. Provost, Jr. (hereinafter also called the "Petitioner," "Rick Provost" or "Provost") filed the instant petition for a writ of habeas corpus in five counts. The First Count claims ineffective assistance of counsel, the Second Count claims failure by the prosecution to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), Count III prosecutorial misconduct, Count IV newly discovered evidence and Count V, actual innocence.
The Petitioner was charged with one count of Sexual Assault in the First Degree (CGS Sec. 53a-70 (a)(2)) and with one count of Risk of Injury to a Minor in violation of CGS Sec. 53-21. Following a jury trial in November and December 1995 the Petitioner was convicted on both counts, and on January 12, 1996 the Petitioner was sentenced to seven years on each count, the sentences to be served concurrently; Schimelman, J. The Petitioner was released on bond pending appeal. Petitioner's attorney at trial was Charles Thompson. The Appellate Court affirmed the Petitioner's convictions in State v. Provost, 49 Conn. App. 56 (June 9, 1998). On September 29, 1998, the Connecticut Supreme Court granted the Petitioner's petition for certification. On November 30, 1999 the Supreme Court affirmed the Appellate Court's ruling in 251 Conn. 252 (1999), and on March 9, 2000, the Court denied the Petitioner's motion for re-argument. The execution of Petitioner's sentence was stayed pending the Petitioner's appeal to the United States Supreme Court. The Petitioner filed a Petition for a Writ of Certiorari in the United States Supreme Court on June 9, 2000, which petition was denied on September 2, 2000. Following the denial by the United State's Supreme Court the Petitioner surrendered himself to begin serving his sentence and is presently in the custody of the Respondent.
According to Attorney Thompson, jury selection was from November 1, 1995 to November 6, 1995 with the start of trial November 15, 1995.
As for the habeas trial, preliminary matters were heard before this Court on November 21, 2002, December 10, 2002, and February 6, 2003. Following these hearings this Court issued an order that the Court would review, in camera, files of the Department of Children and Families (DCF), and on February 21, 2003 ordered the DCF files turned over for in camera review. In camera review was held and certain materials were disclosed to the Petitioner as either exculpatory or potentially exculpatory. This Court heard evidence on June 18, 2003, July 7, 8, 9, 10, 11, 2003, September 15, 16, 17, and 19, 2003, and took care of housekeeping matters in a hearing on September 30, 2003. Throughout the habeas matter, the Petitioner was represented by the law firm of Shipman Goodwin, specifically James Bergenn, Morgan Rueckert, and Lee Duval. The Respondent was represented by the Chief State's Attorney for the Judicial District of Hartford, James Thomas.
Several witnesses were presented by both sides. Of particular note, Attorney M. Hatcher Norris testified for the Petitioner as an expert witness on criminal defense litigation and in particular defense of sexual assault claims. The Court qualified him as an expert witness well aware of his background and experience and impressive credentials as a criminal defense attorney. The Respondent presented Attorney John Stawicki, not as an expert witness, but as a competent attorney who testified as to what he would have done in certain circumstances that were involved in this case. This resulted from a question by Attorney Thomas to Attorney Norris to the effect that if one hundred competent defense attorneys were asked if they would agree with his conclusion, would any of them say no?, to which Attorney Norris replied no. Attorney Stawicki was presented to show that there were instances in which he would have said no, i.e. where he would have disagreed with Attorney Norris. Other witnesses will be mentioned hereafter as appropriate.
The parties filed briefs dated October 27, 2003, and the Petitioner filed a reply brief on November 14, 2003. The Respondent chose not to file a reply brief.
FACTS
Petitioner had a dating relationship with Jeanette, the alleged victim's mother (hereinafter "J") in 1990 and 1991, which relationship terminated in late 1991. Petitioner was later accused of having one instance of sexual intercourse with J's daughter between April 1990 and November 1991 (the daughter is identified hereinafter as "M" in accordance with CGS Sec. 54-86e). M was six years old at the time of the alleged sexual intercourse and eleven years old at the time of the underlying criminal trial in 1995. It is undisputed that Petitioner had no contact with M subsequent to 1991. On or about February 1994, M developed a yeast infection and blood in her urine, indicators of sexual intercourse. At that time M's aunt, Darline (hereinafter "Darline"), questioned her about her sexual activities, and M allegedly identified the Petitioner as having sexual intercourse with her while he was dating her mother.
Further facts will be recited as appropriate hereafter.
STANDARD OF REVIEW
The "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland v. Washington, supra, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: The defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness, id. 687-88; and (2) that defense counsel's deficient performance prejudiced the defense, id. 694. As for the second prong of Strickland supra, the Petitioner is required "to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Copas v. Commissioner of Correction, 234 Conn. 139, 154-55 (1995).
In order to find actual innocence of the Petitioner, the Court must find it by clear and convincing evidence and conclude that no reasonable fact finder would find the Petitioner guilty at a retrial. Miller v. Commissioner, 242 Conn. 745 (1997).
In addition, the habeas court evaluates the credibility of the witnesses based upon whether their testimony at criminal trial as well as the habeas trial is inconsistent with testimony of others at the criminal trial and at the habeas trial and inconsistent with evidence produced at the habeas trial. In addition, the Court's evaluation of their credibility is based upon their appearance and demeanor on the witness stand, the consistency and inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions, their interest or lack of interest in the case, and in the case of expert witnesses, their qualifications and experience as well as all of the above-mentioned factors which applies to all witnesses.
FINDINGS A. Did Counsel for the Petitioner at the Underlying Criminal Trial Provide Effective Assistance of Counsel? CT Page 13796
The short answer to that question is "Yes."
Based upon the totality of the evidence, this Court makes the following findings.
1. Should Attorney Thompson have requested a continuance?
On November 8, 1995, prior to the commencement of evidence on November 13, 1995, M disclosed to her therapist/social worker, Cindy Leach, that she had been sexually assaulted by her sixteen-year-old cousin, Ryan Zabel, Rick or Ricky Reardon, her second cousin, who was approximately the same age as the Petitioner, and by Romeo Dubois, also known as Uncle Meo, who was the husband of M's aunt, Darline Dubois. In the habeas proceeding, Assistant State's Attorney Scott Murphy (hereinafter "Murphy") stated that M had told him directly that the abuse by Rick Reardon occurred in the end of 1993 or the beginning of 1994. M had further disclosed that although the intercourse with her cousin, Ryan Zabel, had occurred in the past few weeks, she also stated that it had occurred over a period of two to three years. Two years prior to the November 8, 1995 allegations by M meant that she was having sexual intercourse with Ryan as far back as November of 1993. Rick Reardon's conduct with her was also the end of 1993 and the beginning of 1994. These incidents are shortly before M's allegation against the Petitioner which occurred in February 1994. The possibility of confusion of whom she was identifying to Darline in February 1994 is clearly prevalent in particular because the alleged abuse by the Petitioner was in 1991. Murphy did not inform Attorney Thompson until November 13, 1995 with the trial about to start. At that point Attorney Thompson should have asked for a continuance to investigate these various allegations.
Respondent, in his brief of October 27, 2003, claims that it is pure speculation as to how long a continuance the trial court would have granted because of this late disclosure of information. However, the trial court stated:
[W]ith respect to the disclosures that the state made this morning, obviously, Mr. Thompson, if at some point they become relevant and matters that the court needs to address, you let me know and we will have them addressed.
(Trial Tr. 11/15/95 at 106; hereafter the criminal trial transcript will be identified at TT and the habeas trial transcript will be identified as HT.)
Attorney Thompson did not respond to the court's invitation for a continuance. He did not request one, he did not make a request for discovery and did not attempt to conduct an independent investigation.
On November 17, 1995, Attorney Thompson requested to see the documents concerning the additional allegations or have the state turn them over to the court. (TT 11/17/95 at 506.) At this point the court asked Attorney Thompson: "Well, what is it specifically that you want from the state so that we can ask Mr. Murphy whether or not he's prepared to produce it?" Thompson replied, "Well, I'm going to ask simply whether or not the state's attorney is in possession or the Southington Police is in possession of any reports that have something to do with Rick or Ricky that could or might be evidence that he had — he was involved with [M] at or about that time or could lead to evidence that Ricky was involved with [M] at or about that time." Attorney Murphy responded when questioned by the court as follows: "The state's position is that if there's a Ricky that's involved in the sexual assault of [M] at or near the time this disclosure was made then I think it's entirely relevant and should be turned over immediately." The court said that "I would agree . . . I am going to request the state to ask the detective whether or not there is any information — because what the police know, the state is deemed to know — whether the state has any information with respect to a sexual assault perpetrated on [M] by anyone else. And we'll go from there."
Attorney Murphy responded: " I'll do that. I just want the record to be clear and I can be brief. I've informed, through the document I've provided, that there was a comment made by the Uncle Meo or Romeo or whatever about an inappropriate activity. That there was never an indication that he ever did anything . . . The actions involved by cousin Ricky or Uncle Ricky — whatever he is — have been reported to the police . . . And, thirdly, this incident involving [Ryan] the son of Lisa, occurred recently — again, in the last few weeks. That's the information I will try — I will contact Southington to determine — and Bristol to determine if there is any other information regarding the cousin Ricky or any other sexual assault." (Emphasis added.) (TT 11/17/95 at 506-18.)
Attorney Murphy contacted neither the Bristol nor the Southington police departments, and Attorney Thompson made no further request for this information.
The colloquy mentioned above concluded with this statement from the court:
If there is anything that is relevant or exculpatory then Mr. Provost is entitled to it. And I think you can sense that the court is very willing to take whatever time is necessary and apparently the state is as well to determine whether or not there's something to this.
(Emphasis added. TT 11/17/95 at 518.)
This was clearly an invitation by the court to continue the matter at Attorney Thompson's request for whatever time is necessary which would indicate that contrary to the Respondent's statement in his brief, the court would have granted a sufficiently lengthy continuance for Attorney Thompson to investigate and explore information regarding these three allegations. Unfortunately, neither Attorney Thompson nor Attorney Murphy did anything further with regard to this information. As for what help such an investigation would have been to the Petitioner's case, the court finds the following:
(a) Attorney Thompson could have questioned M regarding Rick or Ricky Reardon and his sexual assault upon her to bring to the attention of the jury that since she had claimed that Rick Reardon assaulted her in late 1993 or early 1994, just before her revelation to Aunt Darline in February 1994, that there could easily have been confusion between her identifying Rick Reardon and Rick Provost who, it was undisputed, couldn't have assaulted her after 1991.
(b) He could have cross-examined M regarding her allegations against her cousin, Ryan Zabel, that his sexual intercourse with her dated back to the time just before her allegation against the Petitioner first surfaced.
(c) He could have called as a witness, Ryan Zabel, who would have testified, as he did in the habeas hearing, that the allegations against him by M were false. Further, he could have called as a witness, Ryan's younger brother, Jaime, who testified at the habeas trial that he would have refuted the allegation by M that he had walked in on Ryan and M while they were having sexual relations.
Ryan testified at the habeas trial that he would have testified at the criminal trial that M "had a reputation on the block for being a liar." Jaime said he would also have testified to her having a reputation as a liar.
(d) Further, he could have subpoenaed Detective Fournier of the Southington police department who had investigated the allegations against Ryan Zabel and had concluded that as to these allegations M was not credible. Respondent may claim that Detective Fournier's statement that she was not credible would not have been admissible if it were considered a collateral attack on her credibility. The Court is not persuaded that it would be inadmissible, but if it were so ruled, Petitioner's counsel could simply have asked Detective Fournier what the allegation was, what Ryan Zabel's response had been, what evidence Ryan Zabel had produced to counter the allegation and then simply ask Detective Fournier whether he arrested Ryan Zabel and what he had done, to which he would have replied that he did not arrest Ryan Zabel and he closed the case.
2. Should Attorney Thompson Have Conducted Further Investigation?
The answer is Yes for the reasons set forth in the aforementioned paragraphs (a) through (d) and for the reasons hereinafter stated.
The failure of trial counsel to investigate this allegation and present evidence to show that it was false, was prejudicial to the Petitioner. It would have shown that there was a prior false accusation by M and/or evidence of her contrivance or fantasy and would impeach her credibility. This entire case rested upon the credibility of M and the Petitioner. There was no physical evidence, no witnesses, nothing but the allegations by M and the denials by the Petitioner. The admission of evidence of prior false accusations is not barred by the Rape Shield Statute. State v. Manini, 38 Conn. App. 100, 112-15 (1995). The Appellate Court stated on page 115, "The prior claims of rape, if false, would be relevant. In State v. Cassidy, supra, 3 Conn. App. 382, we determined that, if the victim had raised a false claim before, it was admissible as to the credibility of her testimony in this case." In Manini, the court ordered a new trial because the trial court would not allow evidence of prior claims that may have been false. State v. Sullivan, 244 Conn. 640, 648-49 (1998), is very clear. "In order to get prior false accusations before the jury, the Petitioner must make a showing that, in fact, the prior complaint was: (1) Made by the victim; and (2) False." State v. Sullivan, supra. In a case where a victim had not previously mentioned being assaulted by the defendant's brother-in-law the court said it was relevant to whether the claim against the defendant was a "child's imagination." This is similar to the case at bar in that the allegation against Ryan goes back to a claim of sexual intercourse for at least two years from the time she made the allegation on November 8, 1995. She never mentioned this allegation before even though she was in therapy, and she was in contact with law enforcement people for part of that two-year period. Of course, the issue of whether the allegation was false would be up to the jury, but the jury would have before it a determination by the Southington police, Detective Fournier, that M was not telling the truth, and that it was unusual to accuse four men of sexual abuse; the denial under oath by the reported abuser, Ryan, the denial under oath by the purported corroborating witness, Jaime Zabel, the medical evidence submitted to the Southington police by Ryan, the fact that M's own mother questioned her claim which is why she took her to Bristol Hospital and wanted to know whether or not she was telling the truth, as well as Detective Fournier's description of M's behavior when being questioned. The record reflects that when he zeroed in on this questioning of her a second time, she turned her back to him, and refused to answer questions.
In Toccaline v. Commissioner of Corrections, CV 02-0814816 S, W.L. 31304820 (Sept. 12, 2002), this Court in granting the habeas petition found that the trial attorney failed to make an effort to obtain a relevant police report from another state, and if the prosecutor failed to disclose the material, trial counsel should have filed a motion for disclosure with the court. This Court found that in that case defense the attorney's failure to seek out potentially exculpatory material fell below the standard of competence required of criminal defense attorneys. This conclusion is supported by the holding in Siemon v. Stoughton, 181 Conn. 547, 557 (1981), in which the court held that failure to conduct an adequate investigation is not a matter of trial tactics. Counsel must make his decisions on an informed basis. That was not done. It is the duty of a defense attorney to investigate the relevant material in the state's attorney's file. The test for establishing prejudice "should be whether an adequate factual investigation would have enabled counsel to cast reasonable doubt on the state's evidence." (Emphasis added.) In the case at bar, the failure of Attorney Thompson to investigate the circumstances of the three additional allegations of sexual abuse by other people by M and obtain DCF records which were damaging to M, her mother and her aunt, Darline, was all prejudicial to the Petitioner; and as stated herein, this was ineffective assistance of counsel which if it had not been present there is a reasonable probability that the result of the trial would have been different.
In answer to this Court's question during the habeas trial, Attorney Thompson stated that the only report he received about anyone else having sexually abused M aside from the Petitioner, was from a piece of paper that was stuck in the outside door as Attorney Thompson was leaving the Courthouse at 101 Lafayette Street, Hartford. He stated: "And stuck in one of the gold bars [across the door] is this kid's name." He was referring to Ryan Zabel. "And I go — I make a stink about it at the trial. It seems to me that they were investigating somebody else and it never seemed to go anywhere and I think — I had it marked. — It seems to me that there was some connection with this case between — and the name Zabel. And it may have been with Lisa Zabel and with members of the family . . . I mean, something stuck out. And I just couldn't put my finger on it." At that point Attorney Thompson had not received anything from the State regarding the investigation of Ryan Zabel. However, this piece of paper, the origin of which was never explained, was sufficient for him to investigate Ryan Zabel and contact the Southington police. He failed to do so. Although the Southington police were at that time in the middle of their investigation of the allegation against Ryan Zabel, that information had not yet been turned over to Attorney Thompson. However, with the information contained in that note, he should have launched an investigation of Ryan Zabel, and his failure to do so fell below the standard of competence of criminal defense attorneys in the area, and for the reasons later stated herein, this information would have been helpful to Attorney Thompson to impeach the credibility of M. If it were not for this ineffectiveness, there is a reasonable probability that the result of the trial would have been different. See HT 65-69, 6/18/03. Attorney Thompson never contacted Detective Fournier of the Southington Police Department, and Ryan Zabel stated that no lawyer for the Petitioner ever talked to him about M's allegations. (HT 7/8/03 at 161, 57.) In fact, even though by November 13 be had the names of Rick Reardon, Ryan Zabel and Romeo DuBois the only witnesses he interviewed were two sisters of the Petitioner and a fellow employee of the Petitioner at Pratt Whitney. He stated that ". . . I think the purpose for interviewing them is to whether or not those people who lived in close proximity to Richard's house ever saw Richard and a little girl together at or about these times." (HT 6/18/03 at 97.) Interviewing only these three witnesses when he learned of the other allegations against Rick Reardon, Ryan Zabel and Romeo DuBois and knew of the reports of Cindy Leach of DCF was really only a cursory set of interviews, and this failure to fully investigate and talk to these potential witnesses fell below the standard of competence for a criminal defense attorney in the area; and if it were not for this failure, the lack of cross-examination of M and Darline and J and Cindy Leach and the testimony of Ryan Zabel as to a false allegation as hereinafter stated was prejudicial to the Petitioner, and if it were not for this ineffectiveness, there is a reasonable probability that the result of the trial would have been different. Attorney M, Hatcher Norris, the Petitioner's qualified expert at the habeas trial testified in pertinent part that Attorney Thompson ". . . had an obligation to investigate these allegations. I don't think he had a choice. It's not a tactical decision. He had to investigate. I mean he should have moved the Court. He should have immediately retained an investigator, had these three interviewed or attempted to be interviewed, get the information, as much information as he could." Attorney John Stawicki who was presented by the Respondent as a competent criminal defense attorney in the area stated that he also would have investigated the other allegations and would have tried to talk to the Southington police. Both Attorney Norris and Attorney Stawicki testified at the habeas trial that they would have voire dired Pamela Neary, Dr. Jean Hagan and Cindy Leach, therapist or social workers for DCF, Wheeler Clinic, etc. and obtained consent of M to voire dire them (such consent being denied, her testimony would have been stricken). As to their knowledge of the other allegations against family members Attorney Stawicki agreed with this and stated that he would also ". . . have attempted to get all of the records, medical and psychological, relating to M . . . and would have attempted to get all the records with respect to the other individuals against whom there were accusations of molestation." He further stated that he would have filed Brady motions relating to these accusations and relating to Rick Reardon, Ryan Zabel and Romeo DuBois. HT 7/11/03 at 52 as to Attorney Norris and HT 9/19/03 at 173, 174, 66-67, 222, 144, 167, 168 as to Attorney Stawicki.
Attorney Stawicki also stated that if the State did not produce the records he sought through discovery, he would have moved for a mistrial if he found anything to indicate that the State did not ardently search for the information. HT 9/19/03 at 173.
This Court agrees with the aforementioned conclusions of Attorneys Norris and Stawicki.
State v. Oulette, 190 Conn. 84, 98 (1983), states that there may be impeachment by showing that the victim did not speak of prior incidents of abuse at a time when it would be natural to speak. This would apply to Provost in this case in which she waited three years (1991-1994) to complain about Provost, yet Attorney Thompson did not cross-examine M on that issue.
Lisa Zabel, who is Ryan's mother and M's aunt, testified in the habeas hearing that M, during the two-year period, had made up an elaborate story about a gorilla touching her. This is evidence of her fantasy. State v. Oulette, supra, also states that a witness may be impeached by a suggestion of recent contrivance. Id. 98.
(e) In the case at bar the state's attorney argued in his closing argument: "Is this something [M] should have know? . . . if you believe [M] you find there is no reasonable explanation for what happened other than the defendant did this . . . And my argument to you is that there is no reasonable explanation other than that the defendant had sexual intercourse with a six-year-old child a few years ago." By emphasizing that the only possible way M could have know about sexual abuse was from her activity with the Petitioner, the state's attorney excluded any other possibilities. However, if Attorney Thompson had brought out the claims of M against Ryan Zabel, Uncle Romeo and Rick/Ricky Reardon, this would have precluded such a statement by the state's attorney because it would have shown an alternative source for M's sexual knowledge. In State v. Rolon, 257 Conn. 156, 186 (2001), the court reversed defendant's conviction for sexual assault against a minor, finding that the defendant was denied his constitutional rights to confrontation, to present a defense, and to a fair trial when the trial court prohibited him from presenting evidence of [the complainant's] prior sexual abuse or the factual similarities between the present and previous instances which could have: 1) " demonstrated an alternate source for the victim's sexual knowledge" [the complainant's sexual knowledge], and 2) resulted in the complainant's confusion over the identity of the perpetrator." (Emphasis added.)
Of course, the jury never heard of an alternative source of M's sexual knowledge because the evidence of the three other sexual assaults was never brought out, and they all occurred prior to the testimony of M in the criminal trial.
(f) It should also be noted that in her interviews with the social workers, etc., M described that the Petitioner's penis had entered into her vagina. However, in the trial, she merely referred to her "private parts." This contradiction could have been explored by Attorney Thompson if he had obtained through investigation and disclosure the reports that were available from DCF and from the two police departments.
(g) Finally, what is particularly egregious about Attorney Thompson's performance is that even though he had some information about the allegations, he never sought to question M about them. This court admires Attorney Thompson's candor, but his admission that he did not remember at the criminal trial the information that was revealed on the eve of the criminal trial is devastating against his competence. This Court, at the habeas trial, questioned Attorney Thompson on this issue as follows: "Well, did you use any of that information to cross-examine M?" Attorney Thompson replied: "I don't believe so." To which this Court asked: "Why not?" To which Attorney Thompson replied: " I don't think I remembered it." (HT 6/18/03 page 132.) (Emphasis added.) Attorney Thompson merely forgot about the other allegations even though they had been finally revealed on November 13, 1995 and even though M's testimony and credibility were the essence of the state's case. It is very clear that a continuance should have been requested by Attorney Thompson. It is very clear that Judge Schimelman, the trial judge, would have granted a lengthy continuance, but Attorney Thompson failed to request one and, therefore, failed to obtain sufficient information to fully impeach the credibility of M as well as other witnesses. It should be noted that both Attorney Norris and Attorney Stawicki who was presented by the Respondent testified that they would certainly have asked for a continuance to investigate.
This failure to ask for a continuance and to properly investigate these three allegations for the reasons stated above severely prejudiced the defense of the Petitioner. Attorney Thompson did not provide effective assistance of counsel in regard to his failure to request a continuance, his failure to investigate and his failure to cross-examine M, etc. The Court finds that if he were not ineffective, M's credibility would have been severely impeached and there is a reasonable probability that the result of the trial would have been different.
3. Was Attorney Thompson ineffective in cross-examining Darline?
The short answer to this question is Yes. If Attorney Thompson had taken the time to investigate these allegations and to obtain the DCF records through an in camera inspection as this court did, he would have learned that J, M's mother, made statements when M was taken to Bristol Hospital that any allegations against family members would be devastating to the family.
Noreen Justice, a staff nurse at the hospital, testified at the habeas trial that when M was taken to Bristol Hospital following the disclosure of a yeast infection and blood in her urine in February 1994, M was "very clear" that this abuse by Ryan had been going on for two years. (HT 9/15/03 at 67-68.) Ms. Justice also stated that: "When the mother originally came in she indicated that she didn't believe [M's] allegation was true, and she wanted the exam done because she wanted to obtain evidence or proof that it really happened . . ." M's mother also indicated that if she had to confront her sister and tell her that her son had molested [M] "it was going to rip [her] family apart . . ." (HT 9/15/03, pages 62, 79, 81 (also see Petitioner's Exhibit 36 from the habeas trial) (emphasis added).
The following facts led up to the arrest of the Petitioner. In early February of 1994 J and Darline took M to a psychiatric clinic because of her unusual behavior. At the clinic, M became violently upset and exhibited a marked fear of men. She was hospitalized for three days for a psychiatric examination, and a medical examination revealed that M had a yeast infection and blood in her urine. The infection caused the doctors to question whether M was sexually active. When M was released from the psychiatric clinic, she stayed overnight with Darline who then questioned her about whether or not she had been involved in any sexual activity. M was upset, but Darline persisted in the questioning and asked her if anybody had touched her. M replied that "He had hurt her." Darline then asked who had hurt her and M said, "Rick, Mom's boyfriend." Darline then told M's mother and Darline reported this information to Child Protection officials. An investigation was subsequently initiated, following which Petitioner was arrested for sexual assault on M and risk of injury to a minor.
On November 16, 1995, prior to the testimony of Darline, Attorney Murphy provided redacted portions of notes taken by Lisa Zabel, Ryan's mother. In the habeas hearing, Lisa Zabel (hereinafter "Lisa") stated that after M made the allegations against Ryan, Rick Reardon and Uncle Meo, who was Darline's husband, the family basically fell apart and that Darline had disowned the family.
The defense theory that Attorney Thompson was attempting to provide was that Darline and J had motive to maintain the family relationships by covering up allegations that family members, namely Ryan, Rick Reardon and Uncle Meo had abused M and as a result of this motive the allegation was made against Rick Provost, the Petitioner. (HT 7/8/03 at 124-27.) Lisa, who testified at the habeas trial but was never called to testify by Attorney Thompson, revealed the following:
He had interviewed her in his office, knew of her notes but did not request them even though Lisa testified she would have given them to him. He was subsequently given her redacted notes by the prosecutor at or just following the commencement of the taking of evidence.
Attorney Thompson never asked her for the original notes. She would have provided them to him and she would have testified at the criminal trial substantially the same as she testified at the habeas trial. She would have also allowed Attorney Thompson to talk to Ryan and Jamie, her children. (HT 7/8/03 at 112, 113.) Lisa further testified at the habeas trial that in February 1994 J asked Lisa to have M over to her house because J was having a hard time with her and J had asked Lisa to `figure out what was wrong' . . . so I asked her some questions." (HT 7/8/03 at 83.) She stated that she specifically asked M if anybody had touched her inappropriately. "I think she said no." (HT 7/8/03 at 84-85.) The following day M went to Darline's house, Darline questioned her which is when she allegedly accused the Petitioner. (HT 7/8/03 at 87.) When Lisa had asked questions about sexual abuse, M had not said anything. As to Lisa M denied that she had been touched inappropriately. It should also be noted that when Darline testified in the habeas trial she admitted that she had questioned M back in 1990 to 1991, during the time the Petitioner was dating J if anyone had touched her and M said no.
On April 19, 1995, Lisa asked M why she had not mentioned Rick Provost when she was with Lisa but mentioned him the following day to Darline. M stated to her that Darline was asking her specifically about Rick. She also testified that M reported that "some of the things Darline had asked her she answered no to and Darline said that she had thought that she had answered yes to some of the questions that Darline had asked her." (HT 7/8/03 at 103-04.) In early November 1995, Lisa again asked M why she told Darline about Rick Provost. M replied that Darline was not going to stop asking her until she told her. (HT 7/8/03 at 105.)
This is when, at the grocery store with Lisa and M, M made up a story that it was a gorilla that touched her.
If Lisa had testified at the criminal trial the way she testified at the habeas trial, it would have impeached Darline's version of the original disclosure against the Petitioner by M. It would have impeached Darline's testimony and would have shown that evidence of sexual fantasy could have been valuable in impeaching M's ability to testify reliably.
Accordingly, the theory of motive as attempted by Attorney Thompson was at issue. Unfortunately, he did not properly articulate motive in his cross-examination of Darline. The following excerpts from the Connecticut Supreme Court in State v. Provost, 251 Conn. 259, 260, 261, 262, 264 and 265 (1999), are relevant:
The following colloquy between court and defense counsel then transpired:
The Court: But I want to know what your claim is.
[Defense Counsel]: Oh, my claim simply is [that Darline] was concerned about the members of her family who could have caused this particular yeast infection. She brought it up on direct. That means I certainly can probe her particular concern about her family. And [the defendant] is certainly not her family . . .
The Court: Are you claiming anything other than third-party culpability, so that I'm clear and the record is clear, counsel?
[Defense Counsel]: No, I'm claiming it for credibility with regard to what [Darline] can remember as to what she testified [to] on direct. (Emphasis added).
After the trial court sustained the state's objection, it invited the defendant to articulate other reasons he would like the court to consider for questioning Darline about her family life. The defendant never availed himself of this opportunity.
On appeal, the defendant claims that the proposed line of inquiry was intended to expose Darline's alleged bias and motive to lie. The colloquy quoted above, however, belies that portrayal. Despite his current attempts to recharacterize the proffer, the defendant's express declaration of intent was limited to challenging Darline's credibility regarding what she had testified to on direct examination. Therefore, the issue of bias and motive was never identified as a basis for the inquiry.
Additionally, the defendant points to evidence, disclosed to the defendant by the state, that shortly before his trial, M had accused her second cousin Richard of having sexually assaulted her in 1995, and to the existence of a "diary" consisting of notes compiled by Lisa, Darline's sister, which indicated Lisa's belief that Darline's husband or son may have been sexually inappropriate with M, as evidence of Darline's motive to conceal the fact that a member of her family could have been the true assailant. Once again, however, despite his access to the disclosed material and to the information he gathered during his interview of Lisa, the defendant did not proffer or rely on the information to inform the court of the relevancy of his proposed line of inquiry. Indeed, at the time of its ruling, the trial court was aware only of Darline's close relationship to M and of her role in reporting M's allegations to the authorities. This information was not a sufficient basis upon which the trial court should have, sua sponte, speculated that Darline had been motivated improperly . . .
Regardless of whether there existed a good faith basis for questioning Darline about familial abuse, because the defendant failed to articulate his theory that Darline had steered M away from implicating a member of Darline's family and coached her to instead incriminate the defendant, and because he failed to identify the material he possessed, either about M's cousin Richard or about Lisa's notes, the court had no basis upon which to speculate about Darline's motive to influence M. We decline to impute to the trial court knowledge it did not have. Accordingly, we conclude that the trial court properly exercised its discretion in precluding the subject area of inquiry. (Emphasis added).
The Supreme Court also noted:
The defendant did not seek to introduce evidence of the alleged 1995 assault of M by her cousin Richard or to question Lisa about her diary. Not only did he fail to rely on that information to inform the court of the relevancy of the aforementioned proposed line of inquiry; see part I of this opinion; but the defendant also failed to proffer such material to demonstrate other suspected abuse. Therefore, this was not an instance of the state attempting to capitalize on its successful efforts to exclude evidence that might have been unfavorable to its case.
It should also be noted that the hearing before the Supreme Court in State v. Provost was before a five-judge panel, and the affirmation of the Appellate Court's affirmation of the conviction was on a three-to-two vote. In their dissent Justice McDonald and Justice Berdon stated in pertinent part:
There was sufficient evidence of familial sexual abuse in the record to allow the defendant to pursue a line of questioning challenging Darline's credibility and to inquire about any influence that family involvement may have had upon Darline's questioning of M. The record reflects that M had accused three family members of sexual assault or sexual advances. The state's attorney disclosed to the defendant during the trial that M recently had accused two cousins of sexual assault. M had accused her adult cousin, who, indeed, shares the same nickname as the defendant, Rick, and her cousin Rick later admitted to abusing M sexually. At one time, M had indicated to the state's attorney that her cousin" Rick" had sexually abused her immediately before telling Darline about the alleged abuse by "Rick," the defendant. M also accused a teenage cousin, Darline's son, of sexually assaulting her. Finally on the day Darline testified, the state's attorney disclosed evidence that Darline's husband, Romeo, had made sexual advances to M sometime before Darline's questioning of M. The jury, however, never learned of M's allegation concerning Romeo's sexual advances or of any of M's allegations of other familial sexual abuse.
This evidence was of notes of M's aunt, Lisa. These notes indicated that Darline's ex-husband, Romeo, had made sexual advances to M while he was married to Darline.
Contrary to the characterizations of the trial court, the defendant was not claiming third-party culpability; rather, the defendant argued that, regardless of who abused M, Darline was concerned with protecting her family and may have been motivated to attempt to guide M's identification to avoid an accusation of one or more family members.
I would conclude that the trial court unduly restricted the defendant's cross-examination of Darline. Evidence concerning Darline's knowledge of familial sexual abuse would shed light on the credibility of her testimony that she was not covering up for family members when she questioned M.
Id. 266, 267, 268. The dissent also stated:
The confrontation clause of the Sixth Amendment to the United States Constitution requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state's witnesses . . . cross-examination concerning motive, interest, bias or prejudice . . . is a matter of right and may not be unduly restricted . . . Partiality, or any acts, relationships or motives reasonably likely to produce it, may be proved to impeach credibility [citing State v. Lee, 229 Conn. 60, 70 (1994), and State v. Santiago, 224 Conn. 325, 332 (1992)]. (Emphasis added).
The defendant failed to preserve properly his evidentiary claim and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), claiming that he was deprived of a fair trial. The combined effect of the evidentiary ruling and the closing arguments of the state's attorney "so compromised the integrity of the trial as to call into question the reliability of the verdict." State v. Watson, 251 Conn. 220, 237, 740 A.2d 832 (1999). In my view, the defendant has satisfied Golding and I would order a new trial.
The above excerpts from State v. Provost clearly show the ineffectiveness of Attorney Thompson in articulating that his line of inquiry went to motive, bias, etc. If he had properly articulated it, the trial court would properly not have sustained the State's objections. If the trial court had still sustained the objections, there would have been a record on appeal, and based upon the three-to-two decision, the conviction might well have been overturned by the Supreme Court.
At the habeas trial, under questioning from Petitioner's Counsel, Darline stated that during the time that the Petitioner was dating J, Darline asked M if anybody had touched her inappropriately, to which Darline testified that M said No. (HT 9/16/03 at 81.) Attorney Thompson should have explored this on cross-examination of Darline. It would have shown that Darline, a constancy of accusation witness, questioned M during the only time that the Petitioner could have had sexual contact with M, i.e. when he was dating J, and M denied that any abuse occurred.
Abuse allegedly occurred two years later with Ryan Zabel according to M, with Rick Reardon and with Romeo DuBois. Despite the fact that M later made allegations against all three for the period from 1993 forward, when there was an indication of abuse because of the yeast infection and the blood in the urine in 1994 just before she identified the Petitioner as the abuser, she accused only the Petitioner, with no mention of the abuse suffered because of the other three individuals. Having previously denied sexual abuse with the Petitioner, and after having sexual relations of some kind with the other three individuals prior to February 1994 when she accused the Petitioner would be evidence supporting the claim that Darline pressured M into identifying the Petitioner in February 1994 and avoiding the evidence against three of her relatives. This not only goes to show the contradictions by M and fabrication of the accusation against Petitioner, but it would support a claim of motive of Darline if Attorney Thompson had properly articulated the motive issue. Attorney Thompson's failure to present this contradictory evidence to the jury fell below the standard of competent criminal defense attorneys in the area and was prejudicial to the Petitioner's case because it would have undermined both M and Darline and if it were not for such ineffectiveness by Attorney Thompson, there is a reasonable probability that the result of the trial would have been different.
On this issue, Attorney Thompson's performance fell below the standard of competent criminal defense attorneys in the area. The failure to show a motive by Darline to cover up the culpability of members of her family and her pressure on M to identify the Petitioner was sufficiently prejudicial to prove the second prong of Strickland v. Washington, supra.
4. Was Attorney Thompson Ineffective in Not Calling Lisa to Testify?
The answer to this question is Yes. For the reasons stated above Lisa would have been a powerful witness as to the motive of J and Darline and the unreliability of M's identification of the Petitioner. Further, Attorney Thompson was provided by the state's attorney redacted portions of Lisa's notes which are Petitioner's Exhibit 14. Attorney Thompson never asked Lisa for the original/complete notes which are Petitioner's Exhibit 16, and as noted, Lisa testified that she would have provided them to him. Lisa's notes and testimony would have been valuable to Attorney Thompson to question Darline and J as to their motivation in pressuring M to identify the Petitioner. In the case of State v. Colton, 227 Conn. 231, 248-49 (1993), the Connecticut Supreme Court made it clear that "cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted . . . and that impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence . . . evidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. It may be . . . the very key to an intelligent appraisal of the testimony of the witness." Attorney Thompson could have used Lisa's testimony and her notes to impeach Darline and J as to their motive. He failed to do so, and his failure to do so is below the standard of a competent criminal defense attorney in the area. If it were not for this failure to impeach the witnesses on the basis of motive, to provide evidence of Darline pressuring M to identify the Petitioner and to provide the evidence of M's fantasy (a gorilla touched her) could easily have influenced the jury against the State's case in which case there is a reasonable probability that the result of the trial would have been different.
As previously noted, M met with Attorney Thompson, he was aware of the notes but did not ask for them. It wasn't until the state's attorney belatedly provided them that he looked at them.
5. Was Attorney Thompson Ineffective in Failing to Consult with a Psychiatrist or Psychologist, an Expert in the Field of Child Testimony, Sexual Abuse and Psychological Trauma?
Expert testimony concerning the reactions and behaviors common to children who make allegations of sexual abuse are admissible because such evidence "assists the jury in its determination of the victim's credibility by explaining the typical consequences of the trauma of sexual abuse on a child." State v. Butler, 36 Conn. App. 525, 531 (1995).
Effective assistance of counsel ". . . also includes a duty to seek out expert opinion and to secure the attendance of expert witnesses when the facts of the case require such investigation and evidence to support a theory of defense." Summerville v. Warden, 29 Conn. App. 162, 171 (1992). It became clear that Attorney Thompson on his own did not have the expertise to prepare properly the issue of suggestibility of child witnesses in sexual abuse cases. Attorney Norris testified that effective counsel would have retained an expert in the field of child psychiatry or psychology to advise him and possibly to testify. (HT 7/1/03 at 69.) It is part of the necessary investigation of defense counsel, and a matter of due diligence, that if defense counsel lacks the independent expertise to prepare that part of the case, he must obtain expert assistance, Norris went on to say. (HT 7/1/03 at 31, 69.) Norris also added that a child psychology expert would be able to identify and explain relevant information, records, and other documents that are created, and explain the body of "scientific evidence studying techniques which contaminate reports which implant certain things in minor children's minds who are very suggestible and that it undermines the trustworthiness of the testimony. Without an expert to testify, that entire body of evidence does not get to the jury." (HT 7/11/03 at 31, 33, 34, 69, 77.) This Court concludes that Attorney Thompson was ineffective in both not consulting with a psychiatric/psychological expert in child sexual cases and in failing to present expert testimony relating to that subject, the subject of suggestive questioning of a child. The reasons for not retaining an expert given by Attorney Thompson at the habeas trial are damaging to his competence. They are, as follows, in pertinent part:
He did not think that any expert testimony would be allowed in "so I didn't think about it." (HT 6/18/03 at 106-07.)
He also testified that he could have retained an expert in child sexual allegations, child psychology, suggestibility or psychiatric issues to view the videotape and comment on its suggestiveness but he "did not really have time for that" given the late disclosure by the State. He further testified that he himself did not have sufficient time to do so. (HT 6/18/03 at 107-08, 158.) Of course, if he had obtained a continuance, (this Court concluded earlier in this decision that he should have requested a continuance and Judge Schimelman was willing to give him a substantial continuance) he would have had the necessary time to do so.
He also testified that he didn't hire an expert on these issues because he didn't think Mr. Provost had the funds to pay for same, but he never asked the Petitioner, who was working full-time until he reported for incarceration, whether he had the funds. (HT 6/18/03 at 156.)
He also thought that Pamela Neary, Cynthia Leach of Wheeler Clinic and Dr. Hagan did not do "any damage in this particular case . . . it was something that just didn't present itself where I would say Boy, I could really use a psychiatric expert in this case to go into what the child either thought, might have thought, could have thought, or whether she was making this up or it was a figment of her imagination or she was suffering from some particular imbalance or something like that. It just — I didn't think that that was presented in such a way that I could even get a foundation to go into that area. It was just — there was not very much there." (HT 6/18/03 at 157.)
Again, Attorney Norris testified that if defense counsel lacks the independent expertise to prepare [for the issues described by Attorney Thompson], he must obtain expert assistance. (HT 7/11/03 at 31, 69.)
The State's expert, Dr. Jean Hagan, related M's psychiatric problems to the Petitioner. However, there was evidence of recent abuse and trauma assuming Attorney Thompson had utilized the disclosures by M of November 8, 1995 which became available to him on November 13, 1995, that could have been linked to M's psychiatric problems which would exculpate the Petitioner. If he had retained a psychiatric expert, said expert would have pointed this out to Attorney Thompson, and he could have countered Dr. Hagan's testimony.
Dr. Walter Borden testified at the habeas trial before this Court which qualified him as an expert witness in general psychiatry and forensic psychiatry including child psychology and sexual abuse of children. This Court is very familiar with Dr. Borden's qualifications having heard him testify in a murder trial conducted by this Court and having reviewed opinions by him regarding psychiatric issues. This Court concluded that he has an excellent reputation and is very well qualified in his field as described above.
Here is a summary of Dr. Borden's testimony before this Court on July 9, 2003 which demonstrates how helpful he or a similar expert would have been to Attorney Thompson in defense of the Petitioner.
a. Only minimal information such as discharge summaries were provided from the hospitals where M was institutionalized in 1994. Attorney Thompson was proceeding "half blind" and didn't realize it.
b. This is a complicated case and a complex family and it would have been essential for the attorney handling this case to consult with a forensic psychiatrist.
c. The other allegations should first have been reviewed because they were so important to the understanding of the case.
d. The interviews of M by Darline, Pamela Neary and Detective LaPilla of the Southington Police Department in a videotaped interview were not done properly and contaminated M's testimony. If the initial interview of the child is conducted with the parent present, as it was in this case, you contaminate the interview. The suggestion by Darline of who "Rick" [was], was later reinforced though subsequent interviews.
e. Where there is sexual abuse, whether emotionally or physically, of a child by a family member there can be what is called a substituted-accusation. By substituted it means the child — because to accuse a family member or somebody they have an attachment to is conflicted, there's a substitute who is accused. Somebody else is accused. Children are very sensitive to an authority and to pleasing authority, so you have to be very careful not to tip your hand as to what you are looking for, because they're apt to give it to you.
This Court finds that Darline's interview as well as subsequent interviews were suggestive and resulted in a substituted accusation, namely against the Petitioner; and that M accused the Petitioner also in an attempt to please her Aunt Darline as well as Pamela Neary and Detective LaPilla.
f. Proper interviewing technique is for the interviewer to establish rapport, to ask wide-open non-direct questions, without focusing right away on the information the interviewer is seeking. The questioning by Darline was leading, directive, suggestive and resulted in a contaminated interview; that an adult can suggest answers to a child unintentionally; Darline was very upset, when she heard about this from the — from the records that were available, she was very anxious. She had to find out. And she was concerned that maybe other family members were — and she jumped in and was very, from the sound of it, directive. She had to know.
g. Darline's anxiety and fears and concerns and need to protect family, in my opinion that would well influence M with — not necessarily consciously or directly. She may have been entirely unaware of the influence that she was wielding. I mean, that happens all the time.
h. As for the interview by Pamela Neary of M, it was completely improper for Ms. Neary, before any questioning of M at the Wheeler Clinic to tell M in the presence of Darline that she was there to tell Ms. Neary what she had told Darline. Dr. Borden commented that: "Tell me or tell us what you previously told Darline, that is entirely unacceptable . . . That breaks all the guidelines . . . So instead of conducting a professional examination yourself, you're setting the child up to repeat what they told in an interview, which sounds like it was highly contaminated. So you just continue and reinforce the contamination . . . that this is a coercive situation for a child. Ms. Neary telling M to tell her what M told her aunt is clearly leading. Because of Ms. Neary's failure to follow proper guidelines, that interview was also contaminated." He described this interview as "brutal."
These comments are reflected in the HT of 7/9/03 at 25, 28, 29, 30-31, 34, 35, 37, 38, 39, 40, 93, 95, 96, 97-99, 102-05, 137.
i. An interview was conducted of M by Detective LaPilla with both the therapist and the mother present. This interview was videotaped, and Dr. Borden commented on it. This Court was provided with a transcript of the video. Dr. Borden stated that the interview was not in accordance with accepted guidelines and stated that Detective LaPilla stated "`Something bad happened to you.' When you say `something bad happened' to a child, they hear `bad.' That is apt to make them feel bad. It's not neutral. And you really have to be as casual and neutral a [sic] possible. You introduce bad, badness, it's emotionally charged. That is not going to be a climate where the child is going to be able to be free or talk more freely. I mean, that — have the mother present, the therapist, too, and then to mention the name of the boyfriend or to bring that in is leading. It's really directive. You're not asking the child what happened to them. You're telling the child what you want to talk about. And it's leading the child. And it's being directive." (HT 7/9/93 at 127.)
"Well, this portion and leading in from the previous what Detective LaPila [sic] was talking about previously, it's more than suggestive. It's I'd use a stronger — it's directive. It's restrictive and it's directive. It's really telling her that — because previously what it said, The reason that we are here is there was a report made by your mom and by your aunt that something bad happened to you a couple — and I'd like for you to explain to me and officer — in any way that you would like what did happen. It's telling her what they want her to talk about. And then he — then he names the — the person involved.
So it's directive. It's — and what this does it reinforces the suggestion previous — it reinforces the contamination. That's different than just suggestion. It reinforces it each time this is done, not what happened really, but what did you tell your — it really restricts the information this child can give. And it reinforces that.
So she ends up with she has to tell what starts with Darlene [sic]. And you have to tell what the aunt — and everything else gets excluded. It really — rather than what you're supposed to do is keep the focus wide and open, and this focuses down and reinforces and reinforces and reinforces. And that's not the way you get reliable information."
And I would differentiate credibility and reliability. Because I don't know — I can't speak to the credibility as one thing. But it's — the real question is: Does it make the information reliable? And this does not. This makes it unreliable. And it's so leading. I mean, she says, I don't know. And he says, A single family — he gives her the information: Single-family home. And then she nods affirmatively. But that's a — clearly leading question. But this is — that runs through this.
j. Detective LaPilla's questions ". . . He's already given her the script of what they're to talk about. And then — the mother is still there. And then rather than just talking directly to her and asking her, it's, Tell me what you told the others. Tell me what you told others. So it's not a real interview of her. It's — he wants her to say what she's told the others. And it's — as I say it's not only leading, it's suggestive, it's really very directive. And saying, there is nothing to be embarrassed about, nothing to be afraid of, well, maybe she's afraid of saying something different than her mother wants her to say. — And that is reinforced over and over again."
k. Detective LaPilla stated: "After you put — after he put you on the bed." Dr. Borden then said in regard to that" There's information provided all over the place in many of his questions. He's in too much of a hurry. And he's providing the information and asking — seems to be asking, like — gives the information do you agree or not agree? But he's providing the information — you're giving too much information so that you're not going to get the child's real recollection, if you can at this point, of what she experienced or what happened — Basically it's a coercive interview. And her body language appears to show it. She's back in a kind of defensive position and holding on. — But this interview was, you know, from my perspective, I'll tell you — somebody who interviews and interviews children, this was — the only way I can describe it, this was brutal. This was an interview by — using an axe. And it doesn't provide information . . . and it doesn't provide reliable information.
"It makes it really difficult or impossible for another examiner coming in later to try to determine what really happened . . ."
l. Dr. Borden was asked whether he could tell from this interview whether or not she was referring to Richard Provost. His answer was: "Not from this, because she was — this was asked in a very directive manner. So it's not clear. I think that that point really began with Darlene [sic]: That there is an issue of who Rick really is. And I think that's a significant — a significant issue. — And she's — it would appear that the suggestion of who Rick is starts with Darlene [sic] and then this reinforced — I mean, that sprung right out reading this material initially, just my first read — go through of it. But then these points make it even more of an issue." (HT 7/9/03 at 133-37.)
This Court concludes that when M was questioned at the trial by State's Attorney Murphy in front of the jury, the context of the examination was already predetermined by the contaminated interviews described by Dr. Borden. If Dr. Borden had consulted with Attorney Thompson, had testified as to the above and reviewed with the jury the videotape, the credibility of M's allegations against the Petitioner would have been severely damaged. Attorney Thompson's failure to utilize an expert in the manner described was ineffective assistance of counsel. This failure fell below the standard of competent criminal defense attorneys in the area, and because of the severe damage it would have done to M's accusations, if Attorney Thompson had not been ineffective in this regard, it is reasonably probable that the result of the trial would have been different.
m. Dr. Borden stated that a child who loses a parent or a significant figure becomes more needy in terms of family attachments and becomes more needy in terms of family influences. He testified that this is especially important with M because not only did she lose her biological father [who was in prison], she then lost a very important father figure to her, Kevin Dufour, her mother's boyfriend following her relationship with the Petitioner. Kevin Dufour died suddenly after which M became suicidal and wanted to be in heaven with Mr. Dufour. This grief, Dr. Borden testified, from the loss of family figures makes neediness. And in children it makes them needy and scared. If you lose one, you can lose them all. It would make her much more needy in terms of keeping the family together, not losing anybody else. So she would be much more vulnerable to family influences, anything to do with keeping the family together. So it would be a fact in emphasizing and I think making her more suggestible because of just on the basis of those two losses.
This Court concludes that this strong desire to keep the family together contributed to Darline trying to avoid accusations against family members and M being receptive to that and substituting the Petitioner for the family members who, as of February 1994 as aforesaid, were sexually abusing her.
n. The mental condition of M and the suicidal behaviors of M were linked to sexual abuse and not the death of Kevin Dufour.
o. Dr. Borden stated that he would have informed trial counsel that the alleged connection between M's psychological trauma and sexual abuse by the Petitioner was a distortion. Dr. Borden said the following facts were significant:
M made no allegations of sexual abuse at her first visit to Wheeler Clinic or at her first stay at Mt. Sinai Hospital from February 1 through February 4, 1994; that M made no allegation of abuse to Lisa the day after her discharge from Mt. Sinai; that M only made the accusation against the Petitioner after Darline and Jeanette discussed the yeast infection in front of her, that Darline questioned M, that M later stated that Darline thought she said yes to things she said no to, that Darline told M she was not going to stop questioning her until M told her, Darline was concerned if it was someone in her family, and Darline specifically questioned M about Rick. "[That] those [factors] are contaminants is an understatement" Dr. Borden stated; that M made the new allegations just before the Petitioner's trial because she could be disturbed by the coercive influencing to follow-through with the story and M's "melt down" on the eve of trial should have been addressed as it related to her testimony. This Court believes that this "melt down" could have been explored if Attorney Thompson had delved into the allegations against the three family members when he was told about it on November 13, 1995.
p. Of major significance to Dr. Borden as to the issue of substitution he stated that if members of the family are sexually abusive it's going to break apart the family, [which it did]. So you can't — you have to find a substitute for somebody outside the family. This — and so why this is significant is indeed when she does make the allegations when she does point to other family members, the family does break apart. So she's right. She's right; that M specifically used the terms "penis" and "vagina" when she described the abuse by Ryan but a week later, when testifying against the Petitioner she used the term "privates." Dr. Borden stated that was so because the original script was privates. This is what flowed from the questioning by Darline and then being followed at Wheeler. So she's not testifying; she goes back to — a kind of script. I think that's why I would raise the question suggestibility and the reliability of her previous accounts. She's using, you know, different language and different circumstances. And it seems like that was the script, contaminated script, so to speak; the allegations against Ryan involved descriptions identical with the accusation against Richard Provost. And I think she even put it that way. She said that it was similar or the same thing that my mom's ex-boyfriend did or something to that effect, indicating — so she used the same description in what appears to be a false accusation as she did with Richard Provost. So it would be significant. It certainly raised substantial questions about the reliability.
q. As to Richard Reardon, it really raises a substantial question about what happened before that. Because these things don't occur in isolation or just once. If he had access to her prior, then it could well have been something ongoing. And if I remember correctly about those — about that situation, I think there was an original claim, the — I think M said that there was sexual intercourse in a downstairs area. And then that changed to cunnilingus in an upstairs area. I think that's what he plead guilty to so the change . . . you know, sexual intercourse and cunnilingus, it raises a question about confusion and reliability. The fact that Reardon admitted that M had seen him naked in the past and had rubbed up against him Dr. Borden found that to be important in terms of recidivism. He noted that no one at the Wheeler Clinic ever questioned M about previous sexual knowledge.
This Court notes that the trial court told Attorney Thompson that he could offer the videotape to show suggestibility. (HT 6/18/03 at 109.) After failing to consult with an expert on the significance of the videotape, Attorney Thompson incredibly moved to exclude the tape when in fact it was exculpatory. It showed an indisputable demonstration of the manner in which these allegations were suggested to M. After having reviewed the videotape with Dr. Borden, Attorney Norris testified that a reasonable, competent attorney would not have come to the conclusion to exclude the tape. (HT 9/17/03 at 125.)
This Court concludes that trial counsel, Attorney Thompson, should have retained a psychiatrist or psychological expert to testify about the suggestibility of the videotaped interview. Further, if he had retained a psychiatrist or psychologist who would be an expert in this field, the testimony of Dr. Borden could have been presented to the jury by either Dr. Borden or someone similarly situated and the evidence of the suggestibility and the substitution principle would seriously have impeached the credibility of Darline, Pamela Neary, M and certainly the interview on the videotape as it was done. Because of Attorney Thompson's failure to retain and have testify an expert witness such as Dr. Borden, the jury was not able to consider the credibility of M with this testimony. Because of Attorney Thompson's failure in this regard, the jury did not hear and could not understand the complex issues related to M's testimony as a child and the psychological and family issues associated with M.
This failure by Attorney Thompson to interview and retain a psychiatrist or psychologist with the expertise of a Dr. Borden to assist him on these issues, to testify essentially as Dr. Borden testified and his failure to have the videotape introduced, which was offered by the trial judge, and show the jury the contamination and suggestibility of the interview as it was shown in the videotape for them to see was below the standard of competent criminal defense attorneys in the area, and, therefore, Attorney Thompson was ineffective in this regard. Clearly, the psychiatric testimony, the videotape, etc. would have really impeached the credibility of M, Darline and Ms. Neary, and if it were not for Attorney Thompson's ineffectiveness, there is a reasonable probability that the outcome of this trial would have been different. This testimony by Dr. Borden and Attorney Norris can be found in HT 7/9/03 at 42-43, 45, 52-58, 65-66, 69-72, 82-83, 104-05, 121-22, 127-29, 132, 134, 138. Testimony as to the trial court offering Attorney Thompson the opportunity to show suggestibility in the videotape was HT 6/18/03 at 109-10. Further testimony was HT 7/11/03 at 64 and Attorney Norris' testimony was HT 9/17/03 at 125.
6. Was Attorney Thompson Ineffective in Not Presenting Expert Testimony Regarding the Yeast Infection and the Bloody Urine?
Attorney Thompson did not present expert testimony regarding same. Darline testified at trial that she questioned M about sexual abuse because of the discovery of the yeast infection following which M accused the Petitioner. The inference could have been clearly drawn by the jury that the purported abuse by the Petitioner resulted in the yeast infection notwithstanding that the Petitioner had undisputedly no contact with M since the end of 1991, and the yeast infection was discovered in February 1994. Attorney Thompson attempted to impeach this inference by cross-examining Darline, but there were objections to his questions which were sustained because Darline was not qualified to testify about yeast infections.
At the habeas trial the Petitioner presented the testimony of Dr. Stephen Curry whom the Court qualified as an expert witness. Dr. Curry testified that "[T]he one thing we think of is that she's had very recent sexual abuse." (HT 7/11/03 at 10.) Further, he testified that there was no possibility that the yeast infection and blood in the urine could have been caused by sexual activity that occurred two and one half years earlier, the time at which the Petitioner allegedly committed sexual activity with M. (HT 7/11/03 at 10.)
Attorney Norris testified that effective counsel would have consulted with and presented expert testimony that M's yeast infection was unrelated to the Petitioner and that the Petitioner was prejudiced by this failure because "the defense loses the ability to argue to the jury that the evidence shows that this condition which is consistent with sexual activity is in fact inconsistent with the sexual activity in this case" [namely inconsistent with the sexual activity of the Petitioner]. (HT 9/17/03 at 57-59.)
This Court concludes that Attorney Thompson's failure to provide expert testimony rather than his ineffective cross-examination of Darline fell below the standard of competent criminal defense attorneys in the area, and he was, therefore, ineffective in this regard. Further, the jury was allowed to infer that the yeast infection and bloody urine was somehow linked to the Petitioner. This should have been cleared up by Attorney Thompson through an expert witness such as Dr. Curry, and his failure to do so prejudiced the defense case to the extent that if it were not for his ineffectiveness in this regard, there is a reasonable probability that the outcome of the trial would have been different.
This Court found the habeas testimony of J, Darline and Rick Reardon who took the Fifth Amendment to be totally lacking in credibility. It found the testimony of the Petitioner, Ryan and Jamie Zabel, Lisa Zabel and Detective Fournier credible, and the testimony of Attorney Norris and Dr. Borden very credible. Attorney Thompson was candid and forthright as was Attorney Stawicki. The Court is not sure what to make of the testimony of Romeo DuBois.
B. Did the State Fail to Turn Over to Defense Counsel Exculpatory Material in a Timely Fashion?
It is well settled law that under Brady v. Maryland, 373 U.S. 83 (1963), the State must turn over to the defense promptly any exculpatory material it may have or to which it has access. This Court in this decision has already faulted Attorney Thompson for not making sufficient efforts to obtain exculpatory material, but that does not relieve the State of its burden to comply with Brady v. Maryland, supra. The standard under Brady is set forth in Strickler v. Greene, 527 U.S. 263, 281-82 (1999): "The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; that evidence must have been suppressed by the State either willfully or inadvertently; and prejudice must have ensued." (Emphasis added.)
It is also well settled law both in Connecticut and under federal case law that the police are an arm of the prosecution, and knowledge by the police is imputed to the state's attorney.
The failure of the State to disclose exculpatory material to the defendant can be summarized as follows:
1. Detective Craig Fournier (hereinafter also "Fournier") was investigating M's claim against Ryan Zabel on or before November 8, 1995. He also had knowledge that the Petitioner's trial was about to commence or had commenced. The accusation made against Ryan Zabel (hereinafter also "Ryan") by M was exculpatory for the reasons aforementioned; namely, that if the jury believed Detective Fournier, Ryan and his brother, Jaime, then it was exculpatory evidence because it would have impeached M's credibility.
2. On November 8, 1995, M made allegations of sexual abuse to her social worker/therapist against specifically her cousin Rick Reardon, Ryan and her uncle, Romeo DuBois. However, this information was not turned over to defense counsel until at least November 13, 1995, at the start of trial, even though Detective Fournier knew of it before November 8, 1995, and certainly the state's attorney knew of it on November 8, 1995. As previously described all of this information could have been used by the defense for impeachment purposes against not only M but against Darline and M's mother.
In State v. White, 229 Conn. 125, 138, 139 (1994), the court reversed the conviction of the defendants and ordered a new trial because exculpatory material was not disclosed by the State in a timely manner. "In this case, the exculpatory materials were disclosed to the defense during jury selection. We have said that `[w]here there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial' . . . In order words, exculpatory evidence `must be disclosed at a time in which it can be [effectively] used.' The defendants in State v. White claimed that they were unable to interview witnesses Anthony Blake and Dave in preparing their defenses. "By the time the exculpatory information was disclosed, however, David disappeared and Anthony Blake had relocated to Jamaica . . . we conclude, therefore, that the failure of the State to disclose the exculpatory evidence at the probable cause hearing deprived the defendants of their constitutional rights to a fair trial . . . the convictions must therefore be reversed."
Five to seven days delay in disclosing some Brady material may not seem like much, but in the case at bar, considering the delay was right up to the start of trial and beyond, such delay was crucial in its prejudice to the defendant.
3. The Connecticut Supreme Court reversed the convictions of the defendant in State v. Cohane, 193 Conn. 474, 499-501 (1984), partly because the State had failed to disclose Brady material. In the case at bar, the court, Schimelman, J., on November 17, 1995 ordered Assistant State's Attorney Murphy to inquire into any other allegations by M against anyone else. This has previously been described in this decision. Although Attorney Murphy agreed to do this, he did not. He failed to obtain information from the Southington and Bristol Police Departments. The state's attorney failed to follow the court's order. Detective Fournier on or before November 8, 1995 was investigating the allegation by M against Ryan Zabel and had knowledge that the Petitioner was on trial being accused by M of sexual abuse, but he did not provide the Assistant State's Attorney with his report, his conclusion that M was not telling the truth, DCF reports which he had in his possession or the Bristol Hospital report. The DCF 136 forms from Cindy Leach and Noreen Justice as well as the Bristol Hospital report were all in Detective Founier's file as of November 8, 1995. Further, on November 8, 1995, M made verbal allegations against Ryan, Rick Reardon and Romeo DuBois. On November 14, 1995 he received DCF 136 forms which identified Cindy Leach and Noreen Justice. He, nonetheless, failed to disclose this information to Attorney Thompson through the state's attorney or otherwise.
Again, the police are an arm of the prosecution. Withholding that information from the defense as aforesaid was a violation of Brady.
4. The Department of Children and Families (hereinafter also "DCF") is an investigative agency of the State and under the ruling in Demers v. State, 209 Conn. 143, 153 (1988), "The State's duty of disclosure is imposed not only upon its prosecutor, but also upon the State as a whole, including its investigative agencies." In that case the court held that if the exculpatory materials were held by the police department the court would be compelled to conclude that constructively the state's attorney had both access to and control over the documents. C.G.S. §§ 17a-3 et seq. mandates DCF to investigate situations in which children are at risk. C.G.S. § 17a-3 provides, inter-alia, for preventive services ". . . for children and youth who are mentally ill, emotionally disturbed, substance abusers, delinquent, abused, neglected or uncared for . . . to provide preventative programs including . . . youth suicide prevention, for children and youth and their families. (Emphasis added). The program shall provide services and placements that are clinically indicated and appropriate to the needs of the child or youth." C.G.S. § 17a-6 empowers and directs the Commissioner to: "(a) establish or contract for the use of a variety of facilities and services for identification, evaluation, discipline, rehabilitation, aftercare, treatment and care of children and youth in need of the Department's services; . . ." C.G.S. § 17-28 (f) states, inter alia: "A commissioner shall . . . promptly provide copies of records to (1) law enforcement agencies, (2) the Chief State's Attorney or the Chief State's Attorneys designee or a State's Attorney for the judicial district in which the child resides or in which the alleged abuse or neglect occurred or the State's Attorney designee for purposes of investigating or prosecuting an allegation of child abuse or neglect . . ." C.G.S. § 17a-28 (1) provides in pertinent part: "A State's Attorney shall disclose to the defendant or his counsel in a criminal prosecution, without the necessity of a court order, exculpatory information or material contained in such record . . ." (Emphasis added.) Further, DCF is required to file form DCF136 with the state's attorney whenever child abuse is suspected. It was a violation of Brady for the DCF records, the police records of the Southington and Bristol Police Departments and the records in the State's Attorneys Office or information known to the state's attorney not to be turned over to Attorney Thompson promptly. In State v. Hammond, 221 Conn. 264, 292 (1992), the court stated, inter alia: "It is well established . . . that a state's attorney has a duty, not solely to obtain convictions, but to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty . . . the state's attorney has an ethical duty to pursue relevant evidence even if it may be exculpatory."
According to C.G.S. § 17a-101 (b) any social worker or police officer, a sexual assault counselor, any person who is a licensed professional counselor are mandated to report suspected child abuse to DCF on said report DCF 136. Attorney Murphy testified at the habeas hearing "I don't think I subpoenaed any DCF records at all in this case." (HT 7/10/03 at 121.) The pertinent DCF reports were in the files of the Bristol and Southington Police Departments, and Attorney Murphy, once he became aware of the allegations on November 8, 1995, had a duty to seek out those reports and then, if there was anything exculpatory as there was, turn them over to Attorney Thompson.
5. Cindy Leach was a social worker/therapist who knew about these other allegations, and no effort was made by the state's attorney to talk to her about these other allegations. Incredibly, when she testified on November 15, 1995, when Attorney Murphy knew about the other allegations as of November 8, 1995, he did not question her at all on these allegations. This failure to investigate by the state's attorney and these violations of Brady were especially egregious in light of the court's order of November 17, 1995 to obtain information pertaining to the additional allegations made by M on November 8, 1995 against Ryan, Romeo DuBois and Rick Reardon.
6. There were other violations, i.e. Attorney Thompson did not receive the aforementioned videotape although he specifically requested it until the parties were already in trial. (HT 6/18/03 at 98.)
7. Attorney Murphy did not even discuss these various allegations with M before she testified. As a state's attorney he had an obligation to investigate fully the veracity of a witness's potential testimony.
C. Has the Petitioner Established the Three Elements of a Brady Violation?
The short answer is Yes.1. For the reasons stated above the prosecution did not provide the defense with the information known to it or imputed to it as described above.
2. The evidence was favorable to the defense in that it could have been used to impeach the credibility of M, Darline and M's mother. As described above, the evidence of a false accusation, although the determination of "false" would be left up to the jury, was impeachable evidence regarding M; additionally, the jury could have reasonably concluded that M was mixed up on her identification of the Petitioner in that both Rick Reardon and Rick Provost had the same first name; the other information which was available in the DCF reports, the police reports, etc. all as described above could have been used to impeach the credibility of M, Darline and M's mother.
3. The evidence was material because it went to the very heart of the credibility of M, Darline and M's mother. There was no physical evidence in this case, and the prosecution's case rested solely upon the credibility of M, Darline and M's mother. Credibility was crucial to the conviction of the Petitioner, and all of this impeachable material could have impeached the credibility of M, Darline and M's mother as a result of which, in accordance with the second prong of Strickland, supra, if Attorney Thompson had all of this information in a timely manner, there is a reasonable probability that the result of the trial would have been different. See United States v. Bagley, 473 U.S. 667, 677 (1985), which states in pertinent part: "When the reliability of a given witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting credibility falls within the general [rule of Brady]." (Emphasis added.) In Demers v. State, supra, our own Supreme Court has held that where ". . . a conviction depends entirely upon the testimony of certain witnesses . . . information affecting their credibility is material in the constitutional sense . . . since if they are not believed a reasonable doubt of guilt would be created."
D. Was There Prosecutorial Misconduct? CT Page 13822
The Brady violations described above amount to prosecutorial misconduct. The failure of the prosecution to develop or obtain the exculpatory information and the failure to turn it over timely to Attorney Thompson demonstrated a disregard of a search for the truth which is the state's attorneys obligation as opposed to always seeking a conviction. These Brady violations are especially serious in view of the trial court's direct order to the state's attorney to follow though and obtain information on the allegations made by M on November 8, 1995. Not only did the state's attorney ignore such order, but did so despite his having agreed upon the record to follow the court's order.
This behavior was compounded by the closing remarks at trial. This Court is well aware that our Supreme Court in State v. Provost, supra, concluded that the State was not prohibited from asking the jury to draw an inference from the lack of evidence regarding any improper motivation behind M's identification of the defendant. It is true that this Court as well as the Connecticut Supreme Court found, in effect, that the fault in the evidence of other allegations and/or Darline's motive to encourage M to identify the Petitioner was the fault of Attorney Thompson and not the trial court nor the prosecution. However, the Supreme Court, in its decision, may not have been aware of the abundance of evidence that was available that Attorney Thompson failed to use to impeach credibility of M and Darline and the fact that the state's attorney was well aware of it. The Connecticut Supreme Court, on page 264, refers to the lack of evidence regarding any improper motivation behind M's identification of the defendant. (Emphasis added.) However, that is not the sole issue in the closing remarks. In footnote 8, the Court stated:
We recognize that when evidence is excluded improperly, the harm to the defendant is compounded when the State takes advantage of the trial court's exclusion by urging the jury to draw an adverse inference based upon the absence of the excluded evidence. [Citations omitted.] Because we have concluded, however, that there was no evidentiary impropriety in the present case, we are not faced with the "compounding" problem.
It is true that the evidence of motivation was not excluded improperly. However, that fact that it was properly excluded is the fault of Attorney Thompson. Nevertheless, there is another aspect of this besides motivation; namely the impeachment evidence that should have become available and utilized by Attorney Thompson. This Court will not repeat all of the impeachment evidence that was withheld by the prosecution in violation of Brady and/or not properly utilized by Attorney Thompson. This Court has already engaged in a lengthy summary of such evidence.
However, that does not excuse the state's attorney from asking the jury to draw an inference when he, himself, knows that that evidence is available.
The state's attorney was fully aware as of November 8, 1995, prior to the start of trial, that M had made allegations of sexual abuse against Rick Reardon, Ryan and Romeo DuBois, Darline's former husband Nonetheless, he concentrated on the lack of evidence, which he knew existed but which had not been utilized because of the Brady violations and Attorney Thompson's ineffectiveness, that no one else could have perpetrated the crime for which the Petitioner was charged. In his closing remarks, the states attorney stated, inter alia: "We would never be here if for some reason someone in the family had been identified as — by [M], you know: so and so did this. You'd never have heard about this. Why bring this whole thing under scrutiny? So that's another reason why Darline didn't make this up and feed it to M." (TT 11/29/95 at 1209.) He also stated: "[T]here is no reason, no reason in the evidence in this case, why [M] would have made this up other than that the defendant had done this to her. No reason." (TT 11/29/95 at 1169 (emphasis added).)
The state's attorney argued over and over that Darline would not have put M through this only to protect another family member. However, the prosecutor was well aware of these other allegations which he knew were not before the jury. Knowing of these allegations, and the information that the allegation against Ryan might have been false, he, nevertheless, hammered away to the jury that the only possible explanation for sexual abuse on M was the Petitioner. He knew, even though it was not in evidence, that there were other explanations, namely the other three possible perpetrators. He also knew that this evidence, the evidence of false allegations, etc. could have impeached the credibility of M. This was not only misleading to the jury but it distorted the facts as he knew them and belied the obligation for a prosecutor to engage in a search for the truth.
The fact that Attorney Thompson failed to put on evidence that the yeast infection, etc. discovered in early 1994 could not have been linked to the Petitioner who hadn't seen M or M's mother since the end of 1991, the prosecutor, well aware that it would have been impossible for the Petitioner to have caused the yeast infection in 1994, nevertheless, stressed that the yeast infection was somehow linked to the Petitioner. "This incident occurred three years before and for whatever reason, the professionals decided not to do an internal exam . . . But if you believe [M] you find there is no reasonable explanation for what happened other than that the defendant did this . . ." (TT 11/29/95 at 1168.) He goes on to say in November 1995 ". . . there is no reasonable explanation, no reasonable doubt if you look at the evidence it's proved in this case — and you're going to determine what that is — that the defendant had sexual intercourse with a six-year old child a few years ago." (TT 11/29/95 at 1207.) This Court wonders how the state's attorney, with a straight face, could argue to the jury that the defendant had sexual intercourse with M just a few years ago, obviously meaning 1994 when he knew that M was not six years old at the time (1994) and that the defendant had no contact with M since the end of 1991. Four years ago is hardly a few years ago as opposed to two years ago. The Supreme Court was not aware, as this Court became aware in the habeas trial, that there was a plethora of exculpatory information which was clearly contradictory to the prosecutor's closing arguments. The state's attorneys remarks in view of the knowledge that he had is clearly prosecutorial misconduct and even comes close to improperly inflaming the jury.
He also knew that if any of these allegations were true (and Rick Reardon later pleaded guilty), M could have obtained her sexual knowledge from sources other than the Petitioner; yet he still argued to the jury that the only way M could have obtained sexual knowledge was from the Petitioner's sexual assault of her.
This is similar to the Supreme Court's decision in State v. Cohane, supra, at page 501. In the case at bar, it was the prosecutor's Brady violations as well as Attorney Thompson's ineffectiveness that prevented the impeachable material from being introduced into evidence. In Cohane, the state's attorney had failed to disclose a prior inconsistent statement which clearly supported the defendant's version of the incident and which was not otherwise discoverable. The court stated: This ". . . cannot be attributed to mere overzealousness. His exploitation and final argument of the very crucial discrepancy that his intransigence exacerbated cannot be condoned or tolerated. By imploring the jury to believe Lawry's testimony on this issue over the conflicting testimony of the defendant, while at the same time withholding from both the defendant and the jury evidence that was crucial to that issue, the state's attorney deliberately impeded the truth seeking process of trial." In the case at bar the state's attorney in violation of Brady withheld crucial information that could have been used for impeachment purposes by the defendant. Knowing of this information even though he had not disclosed it in a timely manner to the defense (and/or knowing that Attorney Thompson was not utilizing it) put Attorney Murphy into a position in which he was withholding from both the defendant and the jury evidence that was crucial to the issue of credibility. The state's attorney, therefore, deliberately impeded the truth seeking process of trial when he made his closing remarks. Please note that this Court has used the language in Cohane, supra, as applicable to the case at bar.
This Court cannot in this decision repeat all of the state's attorneys closing argument and cannot cite the many cases which support this finding of prosecutorial misconduct. Suffice it to say that this Court believes it has cited sufficient cases, sufficient evidence and sufficient argument by the state's attorney to conclude that his closing remarks constituted prosecutorial misconduct as well as his violation of Brady.
E. Is the Petitioner Entitled to a New Trial Because of the Finding of New Evidence?
The short answer to this question is Yes. Discovery, through the habeas process, has resulted in new evidence which if introduced at trial, which this Court believes it would be, would result in a favorable verdict to the Petitioner. This Court finds that the Petitioner has sustained his burden of proof set forth in Johnson v. State, 172 Conn. 16, 17 (1976). The evidence was newly discovered after the trial of the criminal case. Being impeachable material it would be material to the issue of a new trial; it was not discovered and produced at the former trial because of the Brady violations and the ineffectiveness of Attorney Thompson, it is certainly not cumulative and this new evidence is likely to produce a different result in a new trial. Accordingly, this Court finds that a new trial is warranted on the basis of newly discovered evidence. This Court is well aware that Attorney Thompson failed in his duty of due diligence. However, the Brady violations should supersede the lack of due diligence on this issue.
F. Claim of Factual Innocence
In order to find factual innocence the Court must find it by clear and convincing evidence. This Court believes, as stated above, that but for counsel's errors, Brady violations and/or prosecutorial misconduct, it is reasonably probable that there would have been a verdict of acquittal. However, the Court believes that the credibility issue is one to be decided by a new jury. Therefore, the Court cannot find by clear and convincing evidence that the Petitioner is factually innocent.
CONCLUSION
The Petitioner has met his burden of proving ineffective assistance of counsel, violations of Brady and prosecutorial misconduct, and that if it were not for same, there is a reasonable probability that the result of the proceedings would have been different in accordance with the standard set by Strickland v. Washington, supra. Accordingly, the petition for habeas corpus is granted, and a new trial of the Petitioner is ordered.
The Court has also found that there is new evidence that would warrant a new trial.
The Petitioner is ordered conditionally released from confinement. He shall be absolutely discharged unless within thirty days from the date of this Memorandum of Decision, the state's attorney for the Judicial District of Hartford files with the Clerk's Office a written notice of intention to proceed with the retrial of the Petitioner. A copy of any such notice shall be provided to the Petitioner, to his counsel of record in this habeas proceeding, and to the Habeas Court.
The undersigned, sitting as the Habeas Court, shall retain jurisdiction to make, upon proper motion, a bail determination for the release of the Petitioner while an appeal is pending or while the awaiting of a new trial if the state's attorney chooses to proceed with a new trial.
Further, this Court hereby schedules a hearing on the issue of whether the Petitioner should be released on bail on December 12, 2003 at 10:00 a.m. in Courtroom 4B, 101 Lafayette Street, Hartford, Connecticut.
The Court appreciates the professionalism of all counsel in this matter.
RITTENBAND, JUDGE TRIAL REFEREE.