Anderson v. Commissioner of Correction ( 2014 )

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OSCAR ANDERSON v. COMMISSIONER
OF CORRECTION
(SC 18825)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and
Vertefeuille, Js.*
Argued February 14, 2013—officially released September 2, 2014
Daniel J. Foster, assigned counsel, for the appel-
lant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Catherine Brannelly Austin, senior assis-
tant state’s attorney, for the appellee (respondent).
Opinion
NORCOTT, J. In this certified appeal,1 the petitioner,
Oscar Anderson, claims that the Appellate Court
improperly affirmed the judgment of the habeas court
rejecting his claim that he was entitled to a new trial
on the ground that his trial counsel rendered ineffective
assistance. See Anderson v. Commissioner of Correc-
tion, 128 Conn. App. 585, 598, 17 A.3d 1138 (2011).
Specifically, the petitioner contends that the Appellate
Court improperly concluded that he was not prejudiced
by trial counsel’s failure to investigate his claims that
he had a history of various sexually transmitted dis-
eases, to introduce medical records concerning that
history, to introduce evidence concerning whether the
victim had contracted any sexually transmitted dis-
eases, and to present expert testimony concerning the
transmission rates of such diseases. The petitioner
argues that it is reasonably probable that, had such
evidence been introduced at his criminal trial, the result
of the trial would have been different. We disagree and,
accordingly, affirm the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history. The petitioner was represented at
trial by Attorneys Jeffrey Hutcoe and John Cizik.2 Fol-
lowing a jury trial, the petitioner was convicted of one
count of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2)3 and one count of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1). The Appellate Court affirmed the judg-
ment of conviction on direct appeal; see State v. Ander-
son, 86 Conn. App. 854, 856, 864 A.2d 35, cert. denied,
273 Conn. 924, 871 A.2d 1031 (2005); and, on April 30,
2009, the petitioner filed an amended petition for a
writ of habeas corpus alleging ineffective assistance of
counsel. The facts underlying the petitioner’s criminal
conviction are set forth in the decision of the Appellate
Court affirming the petitioner’s conviction on direct
appeal. ‘‘In 1997, the [petitioner] and the victim’s mother
met at their place of employment and became romanti-
cally involved. Shortly thereafter, when the victim was
seven years old, the [petitioner] moved into the moth-
er’s household. The mother worked the second shift
and was not at home when the victim returned from
school. The [petitioner], who worked a different shift,
was there. At first the victim and the [petitioner] had
a good relationship, but later the victim told people she
did not like the [petitioner].
‘‘The [petitioner] punished the victim. The [peti-
tioner] struck her face with his hand when he was angry
because she had not done her homework correctly. She
did not tell her mother about this because she was afraid
of what the [petitioner] might do. On one occasion, the
[petitioner] hit her so hard her nose bled. The [peti-
tioner] also compelled her to hold a book bag filled
with tapes and clothes on a stick over her head for long
periods of time. On another occasion, he made her
kneel on grains of rice. Although the victim did not tell
her mother about these events, she confided in her best
friend. The friend’s mother testified that she noticed
behavioral changes in the victim beginning in 1998. The
victim, who had been carefree, had become quiet and
withdrawn. The victim’s grades suffered, and she exhib-
ited a poor attitude at school. After school one day, the
victim was terrified to go home on the school bus. Her
teacher and school principal conferred with her mother.
The victim, however, had not told anyone other than
her friend that she was afraid of the [petitioner].
‘‘The victim also testified that the [petitioner] made
her rub his back or his feet while he was wearing only
his underwear. In addition, he called her into the bed-
room and asked her to rub his private parts. One night
she woke up and the [petitioner] was attempting to put
his penis in her mouth. She reported this to her mother
who told her that she must have been dreaming. The
victim testified that the [petitioner] had sexual inter-
course with her by putting ‘his private into [her] butt.’
When she was nine and in the fourth grade, the [peti-
tioner] had intercourse with her almost ‘every other
night or twice a week.’ The [petitioner] forced the victim
to have oral, anal and vaginal intercourse with him.
‘‘The victim did not tell her mother about the inci-
dents of sexual abuse until shortly after a fire occurred
in their home, the day after Thanksgiving, 2000. The
victim was spending time with her grandmother who
overheard her talking to herself. The grandmother
insisted that the victim tell her what she was talking
about. The victim told her grandmother of the [petition-
er’s] sexual abuse. The grandmother informed the
mother and immediately took the victim to the police
station. The victim gave a statement to the police in
which she related the [petitioner’s] sexual abuse. The
police advised the victim’s mother to take her to a
hospital that specialized in assessing children who are
victims of sexual abuse. The mother followed the advice
of the police. The victim was examined by Judith Kanz,
a certified pediatric nurse practitioner, who specializes
in child forensic medical examinations.’’ (Footnote
omitted.) Id., 856–58.
During direct examination, Kanz testified that she
had conducted an examination of the victim’s vaginal
and anal areas in December, 2000. According to Kanz,
the examination of the victim’s vaginal area indicated
signs of repetitive contact and the findings from her
examination were consistent with the victim’s claims.
With respect to the anal examination, Kanz testified
that the exam was ‘‘generally within normal limits.’’ On
cross-examination, Kanz testified that when she exam-
ines children who have made allegations of sexual
abuse, she determines whether the children have injur-
ies that require medical attention. Kanz indicated that
she would provide any follow-up medical treatment if
necessary and specified that sexually transmitted dis-
eases require such treatment. When asked by defense
counsel whether she had provided follow-up care to
the victim in the present matter, Kanz responded, ‘‘No.’’
‘‘The [petitioner] testified that the victim did not like
him because she felt that he was replacing her father
and because he planned to marry her mother. He admit-
ted that he disciplined the victim for not doing her
homework or her chores. As punishment, he took away
the victim’s privileges or gave her ‘time outs.’ He also
testified that he made the victim hold a stick on which
an empty book bag was suspended for five minutes.
The [petitioner] denied that he had sexually assaulted
the victim.’’ State v. Anderson, supra, 86 Conn. App.
858. Thereafter, the jury returned a verdict of guilty as
to one count each of sexual assault in the first degree
and risk of injury to a child. Id., 856; see also State v.
Anderson, 119 Conn. App. 98, 104–105, 985 A.2d 1096(2010) (vacating petitioner’s sentence on risk of injury
charge and remanding case for resentencing).
With respect to the habeas trial, the record reveals
the following relevant facts, which the habeas court
reasonably could have found. During the criminal trial,
the petitioner initially was represented by Hutcoe and
subsequently was represented by Cizik. The petitioner
testified that he had told both Hutcoe and Cizik that
he ‘‘had various venereal diseases’’ and that he did not
assault the victim. Hutcoe testified that he recalled the
petitioner telling him that he had sexually transmitted
diseases and that he remembered asking the petitioner,
who had been released on bond, to bring ‘‘some kind
of proof’’ from his physician. According to Hutcoe, the
petitioner never provided any medical records. Cizik
testified that he recalled meeting with the petitioner
prior to the criminal trial, but that he did not recall the
petitioner telling him that he had a history of sexually
transmitted diseases. With respect to discovery, both
Cizik and Hutcoe testified that the state had an open
file policy and that Kanz’ report following her examina-
tion of the victim was in that file.
Attorney Richard Meehan, who testified during the
habeas trial as an expert witness for the petitioner,
opined that reviewing the state’s file and obtaining cop-
ies of relevant documents from that file was not suffi-
cient to satisfy counsel’s discovery obligations in this
type of case. In Meehan’s opinion, counsel in such a
case is obligated to investigate whether the victim or
the accused had a sexually transmitted disease during
the relevant time frame and that, if the accused had a
sexually transmitted disease while the victim did not,
counsel would also be obligated to introduce testimony
from a medical expert indicating that the accused could
not have been the individual who assaulted the victim.
During the habeas trial, the petitioner also presented
the testimony of Timothy Grady, a registered nurse, as
an expert witness with respect to sexually transmitted
diseases. Grady testified on direct examination that he
had treated numerous people infected with sexually
transmitted diseases during his approximately twenty
year career as a nurse. According to Grady, patients
who visit the emergency room for treatment of sexually
transmitted diseases often do not wait for culture
results. As a result, patients may be treated ‘‘prophylac-
tically or empirically . . . for whatever was presumed
to be the problem.’’ Grady testified that his review of
the petitioner’s medical records indicated that the peti-
tioner had presented to the emergency room with com-
plaints of sexually transmitted diseases on multiple
occasions throughout 1997, 1998 and 1999, and that the
petitioner had been ‘‘treated empirically’’ for gonorrhea
and chlamydia on those occasions. Grady clarified that
because the petitioner’s medical records did not contain
culture results for many visits, he did not know if the
petitioner was confirmed to have those diseases.
Specifically, Grady testified that when the petitioner
visited the emergency room in November, 1997, com-
plaining that he had urethral discharge and painful uri-
nation, the petitioner ‘‘tested positive for chlamydia’’
and negative for gonorrhea. In January, 1998, when the
petitioner returned to the emergency room complaining
of the same symptoms, he was diagnosed with a nonspe-
cific sexually transmitted disease, but the record does
not contain any evidence concerning testing or test
results. Several months later, in April, 1998, the peti-
tioner was treated for venereal warts, and in June, 1998,
the petitioner was diagnosed with a nonspecific sexu-
ally transmitted disease after he visited the emergency
room complaining of painful urination and a whitish
urethral discharge. In October, 1998, when the peti-
tioner again presented to the emergency room with
similar symptoms, a culture for chlamydia was negative,
but a culture was positive for the presence of the bacte-
ria Haemophilus parainfluenzae, which is not a sexually
transmitted disease. Finally, in January, 1999, and Octo-
ber, 1999, the petitioner returned to the emergency
room with complaints of urethral discharge and burning
urination. Although the petitioner indicated that ‘‘it felt
like when he had gonorrhea previously,’’ there was ‘‘no
confirmation of gonorrhea in the [petitioner’s medical]
records . . . .’’
Grady testified that a colorful or whitish discharge
and painful urination can be symptoms of sexually
transmitted diseases, but he also indicated that some
individuals who have sexually transmitted diseases are
asymptomatic. During the habeas trial, the petitioner’s
counsel presented Grady with the following hypotheti-
cal: ‘‘A man and a woman have a three year sexual
relationship during periods involving November of 1997
and . . . the male is infected with chlamydia during
that time . . . . Can you state to any . . . reasonable
degree of medical certainty whether or not the female
in that hypothetical would have been infected with chla-
mydia?’’ In response, the following colloquy between
Grady and the petitioner’s counsel ensued:
‘‘[Grady]: Well, that would necessarily depend on
whether or not the man was infected at the time of
the intercourse.
‘‘[The Petitioner’s Counsel]: So . . . in November of
1997, I don’t think there’s a dispute that [the petitioner]
was infected with chlamydia at the time. Is that your
reading of the record?
‘‘[Grady]: No. He had a definite positive culture at
that time. The other times he was treated, he was being
treated for [a sexually transmitted disease]. They just—
the doctor, when he wrote the note, didn’t have the
confirmation of the culture, but he was diagnosed with
[a sexually transmitted disease] at each and every one
of those times.
‘‘[The Petitioner’s Counsel]: Does the rate or the ease
with which [sexually transmitted diseases] are commu-
nicated to or given to a child under ten, does that
increase at all because of the child’s age?
‘‘[Grady]: Well, yeah. I mean, in general, if a woman
is having sex with a man who is infected with chlamydia,
[her] chance of acquiring it is 40 percent for each sexual
contact. For gonorrhea, its 50 percent for each sex-
ual contact.’’
Stephen Scholand, a physician specializing in infec-
tious diseases, testified as an expert witness for the
respondent, the Commissioner of Correction. Scholand
reviewed the petitioner’s medical records and found
that he suffered from chlamydia in November, 1997.
He further testified that the petitioner had ‘‘another
urethral culture positive for an unusual organism,
Haemophilus parainfluenzae. . . . This organism—it’s
very unusual to cause urethritis; however, based on the
clinical symptoms that [the petitioner] presented with,
I believe it may have been pathogenic or caused him
his symptoms.’’ Counsel for the respondent presented
Scholand with the following hypothetical question: ‘‘[I]f
[the petitioner] had been engaging in vaginal, rectal and
oral sex with [an eight, nine, or ten] year old female
and he suffered in—it was confirmed in November of
1997 that he suffered [from] chlamydia, would the
female victim have contracted chlamydia?’’ In response,
Scholand explained that, with the transmission of sexu-
ally transmitted diseases, ‘‘nothing is 100 percent,’’ and
that the victim may not have contracted the disease.
According to Scholand, the rate of transmission from
adult to adult is approximately 30 percent.
During cross-examination, Scholand testified that in
males, the typical symptoms of chlamydia are urinary
discomfort and discharge, whereas in females, symp-
toms are not present or noticed in up to 75 percent of
patients, and symptoms can range from vague abdomi-
nal pain to pelvic inflammatory disease. Many women
‘‘never find out they’re infected with chlamydia until
there’s consequences later on . . . .’’ With respect to
a patient under the age of twelve, Scholand testified,
‘‘I would not expect her to exhibit symptoms of chla-
mydia.’’ According to Scholand, if such a patient did
have symptoms, they could include painful urination
and a serous, or thin discharge.
After cross-examination, in response to questioning
by the court, Scholand testified that chlamydia is an
intracellular bacterium that can be eliminated from the
body through either natural defense processes or antibi-
otics. Scholand explained that, ‘‘[i]f you treat someone
with antibiotics, they can be considered cured,’’ and
that after treatment with antibiotics, the disease is not
transmittable. According to Scholand, the antibiotics
that are prescribed to treat chlamydia are usually taken
for approximately one week, and the protocol is for
‘‘patients not to engage in sexual activity for about a
week [after a course of treatment with antibiotics]
. . . .’’ Scholand further testified, during recross-exami-
nation, that chlamydia and other infections also can
be eradicated by the immune system without the use
of antibiotics.
The petitioner testified at the habeas trial that he had
no knowledge of the victim having suffered from any
type of sexually transmitted disease. The petitioner
stated, ‘‘as far as I’m concerned, she never—she never
contracted anything.’’ The petitioner did not introduce
any other evidence at the habeas trial concerning
whether the victim suffered or did not suffer from any
sexually transmitted diseases during the relevant
time frame.
After the close of evidence, the habeas court asked
the petitioner’s counsel: ‘‘What is the earliest date . . .
of which there’s an allegation that an act of sexual
abuse took place? Understand . . . I’m not asking you
to admit anything. I’m asking the earliest date upon
which an allegation of . . . .’’ The petitioner’s counsel
answered: ‘‘I believe it was January 1, 1998, and . . .
I believe the information reflected at various dates
between . . . [the] beginning of January, 1998 and
[January] 2000.’’
The habeas court then issued an oral memorandum
of decision, which provides in relevant part: ‘‘The issue
[in the present case] is whether the petitioner suffered
from a sexually transmitted disease, which, in his asser-
tion, should have been communicated to the victim had
the events taken place [as alleged]. . . . [I]t is clear
from the evidence that was produced that the petitioner
on November 16, 1997, did, in fact, test positive for the
presence of the chlamydia bacteria. Those same records
establish that in November of 1997, the petitioner was
treated for this chlamydia infection.
‘‘The testimony by . . . Scholand is that chlamydia
can be eliminated from the body if treated with antibiot-
ics. The medical records support that there was an
antibiotic treatment, and it would take approximately
[one] week to eliminate the active chlamydia infection.
There is no further evidence of any chlamydia infection
from which the petitioner suffered. . . . January, 1998,
is the earliest date of sexual contact. By January of 1998,
the petitioner would have been clear of the chlamydia
infection. So, the absence of any chlamydia infection in
the victim [would not have] serve[d] as an exculpatory
piece of evidence. . . .
‘‘[W]hen I look at the evidence that has been pre-
sented here, I have the testimony of the petitioner, who
testifie[d] that he suffered from various sexually trans-
mitted diseases. I have the medical records to support
that. I have no reason to disbelieve that the petitioner
did, in fact, suffer from various sexually transmitted
diseases. The evidence and the petitioner’s testimony
is not inconsistent in establishing that the latest date
upon which a chlamydia infection existed was Novem-
ber 16, 1997.
‘‘Now, what I don’t have is . . . any evidence as to
whether the victim in this case did or did not suffer
from a chlamydia infection. So, I can’t make a conclu-
sive finding as to whether she, in fact, did suffer from
such infection. But if I take the premise that the peti-
tioner is putting forward, that he, in fact, was positive
for chlamydia in November of 1997, and even if we
assume that the evidence would have shown that the
victim was negative, that still doesn’t go to be exon-
erating.
‘‘First of all, based upon the testimony that I’ve
received here today, it is highly likely that in January
of 1998, when the sexual abuse began, the petitioner
was not infectious. Even if he [were] infectious, there
is still a 70 percent chance that the partner, in this case
unwilling, would not be infected. . . .
‘‘In this case, it’s difficult to find that there’s been
deficient performance [by counsel]. To be sure, the
petitioner did inform [counsel] that he had had sexually
transmitted diseases; however, the petitioner did not
ever produce any sort of medical record to support that
[as had been requested by counsel]. . . . But even if
the court makes the assumption that it was deficient
performance not to investigate the [sexually transmit-
ted disease] issue, it is, however, crystal clear that on
the basis of the testimony I’ve heard today, there’s been
no prejudice that could have occurred. Had it been
investigated and even assuming that the victim was
negative for chlamydia, the testimony that I heard today
is clear that that does not in any way exonerate the . . .
petitioner . . . . [B]ased on the evidence presented, I
cannot find that the performance by [counsel] is in
violation of the standard set forth in Strickland v. Wash-
ington [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)].’’ The habeas court then denied the petitioner’s
request for certification to appeal, from which the peti-
tioner appealed to the Appellate Court.
Before the Appellate Court, the petitioner claimed
that counsel had provided ineffective assistance during
his criminal trial by failing to introduce exculpatory
evidence concerning his history of having sexually
transmitted diseases, to retain a medical expert con-
cerning sexually transmitted diseases or to ‘‘ ‘investi-
gate, perform effective discovery or impeach the alleged
victim’s testimony.’ ’’ Anderson v. Commissioner of
Correction, supra, 128 Conn. App. 591. He claimed that,
had counsel performed these steps and introduced such
testimony, he ‘‘would have persuaded the jury that the
victim likely would have contracted these diseases from
[him] if [he] had been sexually assaulting her in the
manner alleged.’’ Id., 591–92. After careful consider-
ation of the record, the Appellate Court majority con-
cluded that the petitioner was not prejudiced by any
deficiencies in counsel’s performance and affirmed the
habeas court’s judgment denying the petition.4 Id., 592;
but see id., 599 (Borden, J., dissenting).5 The petitioner’s
certified appeal followed.
In the present appeal, the petitioner seeks reversal
of the Appellate Court’s judgment on the ground that
there is a reasonable probability that the outcome of
his criminal trial would have been different had counsel
introduced exculpatory evidence related to the petition-
er’s history of sexually transmitted diseases.6 He claims
that this evidence, along with evidence that the victim
had not suffered from any sexually transmitted diseases
and that patients treated for sexually transmitted dis-
eases in hospital emergency rooms are frequently dis-
charged prior to receiving any culture results, would
have raised, in the jury’s mind, a reasonable doubt as
to the petitioner’s guilt. We conclude that the petitioner
has failed to demonstrate that he was prejudiced by
any deficiency in counsel’s performance and, therefore,
affirm the judgment of the Appellate Court.
We begin our analysis ‘‘with the applicable standard
of review and the law governing ineffective assistance
of counsel claims. The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . Bryant v. Commissioner of Correction, 290
Conn. 502, 509, 964 A.2d 1186, cert. denied sub nom.
Bryant v. Murphy, 558 U.S. 938, 130 S. Ct. 259, 175 L.
Ed. 2d 242 (2009). Historical facts constitute a recital
of external events and the credibility of their narrators.
. . . Small v. Commissioner of Correction, 286 Conn.
707, 716, 946 A.2d 1203, cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336(2008). Accordingly, [t]he habeas judge, as the trier of
facts, is the sole arbiter of the credibility of witnesses
and the weight to be given to their testimony. . . .
Id., 717. The application of the habeas court’s factual
findings to the pertinent legal standard, however, pre-
sents a mixed question of law and fact, which is subject
to plenary review. . . . Bryant v. Commissioner of
Correction, supra, 510.
‘‘Furthermore, it is well established that [a] criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. Strickland v. Washington,
[supra, 466 U.S. 686]. This right arises under the sixth
and fourteenth amendments to the United States consti-
tution and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
supra, 687, this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance of
counsel. . . . A claim of ineffective assistance of coun-
sel consists of two components: a performance prong
and a prejudice prong. To satisfy the performance prong
. . . the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . To
satisfy the prejudice prong, a claimant must demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’’ (Internal quota-
tion marks omitted.) Gaines v. Commissioner of Cor-
rection, 306 Conn. 664, 677–78, 51 A.3d 948 (2012). In
addition, in order to demonstrate that counsel’s defi-
cient performance prejudiced his defense, ‘‘the peti-
tioner must establish that counsel’s errors were so
serious as to deprive the [petitioner] of a fair trial, a
trial whose result is reliable.’’ (Internal quotation marks
omitted.) Michael T. v. Commissioner of Correction,
307 Conn. 84, 101, 52 A.3d 655 (2012).
‘‘In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . This does not require
a showing that counsel’s actions more likely than not
altered the outcome, but the difference between Strick-
land’s prejudice standard and a more-probable-than-
not standard is slight and matters only in the rarest
case. . . . The likelihood of a different result must be
substantial, not just conceivable.’’ (Citations omitted;
internal quotation marks omitted.) Harrington v. Rich-
ter, U.S. , 131 S. Ct. 770, 791–92, 178 L. Ed. 2d
624 (2011).
Moreover, ‘‘[i]n making this determination, a court
hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or the jury.
. . . Some errors will have had a pervasive effect on
the inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to
have been affected by errors than one with overwhelm-
ing record support. . . . [T]he ultimate focus of inquiry
must be on the fundamental fairness of the proceeding
whose result is being challenged. . . . The benchmark
for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial can-
not be relied on as having produced a just result.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Gaines v. Commissioner of Correction, supra, 306
Conn. 688–89.
In the present case, the petitioner contends that the
introduction of evidence that he had suffered from sexu-
ally transmitted diseases, coupled with the state’s fail-
ure to introduce evidence that the victim suffered from
sexually transmitted diseases, would have given rise to
reasonable doubt as to his guilt. In so stating, however,
the petitioner oversimplifies the nature of our inquiry
on appeal, which does not begin and end with a consid-
eration of the effect of particular evidence in isolation.
Rather, in assessing whether there is a substantial likeli-
hood that the addition of such evidence would have
resulted in a different outcome, we must consider the
cumulative effect of all of the evidence. See Wong v.
Belmontes, 558 U.S. 15, 26, 130 S. Ct. 383, 175 L. Ed.
2d 328 (2009) (‘‘reviewing court must consider all the
evidence—the good and the bad—when evaluating
prejudice’’).
Expert testimony at the petitioner’s habeas trial
established that the petitioner had tested positive for
chlamydia in November, 1997. At the same time, testing
confirmed that the petitioner did not have gonorrhea.
As the habeas court found, however, by the time the
alleged abuse of the victim began in January, 1998, the
petitioner had been treated with antibiotics and would
have been ‘‘clear of the chlamydia infection.’’ Further-
more, although Grady’s testimony established that the
petitioner had visited the emergency room on numerous
occasions in 1998 and 1999, and was treated for nonspe-
cific sexually transmitted diseases on those occasions,
Grady’s testimony also established that there were no
culture results to confirm that the petitioner actually
was suffering from a sexually transmitted disease
during the relevant time frame. In fact, the only test
results in the record after January, 1998, which were
obtained in October, 1998, indicated that the petitioner
was not suffering from chlamydia. Instead, those test
results indicated the presence of a bacterium that is
not a sexually transmitted disease and that may have
explained the petitioner’s symptoms. As Grady
acknowledged, there also was no indication of gonor-
rhea in the petitioner’s medical records.7
The petitioner argues, however, that, ‘‘[n]otwith-
standing the lack of culture results . . . there is, at the
very least, a reasonable probability that evidence of
[the petitioner’s] diagnoses and treatments for [sexually
transmitted diseases] would have raised in the jury’s
mind a reasonable doubt as to his guilt.’’ Even if we
assume that the petitioner was suffering from nonspe-
cific sexually transmitted diseases during the relevant
time frame, however, Scholand’s testimony established
that there was only a 30 percent chance8 that the victim
would have acquired chlamydia from the alleged abuse.
Moreover, Grady testified that, if the victim had con-
tracted a sexually transmitted disease, she may have
been asymptomatic, so that no one, including herself,
would have been aware of the infection. Scholand simi-
larly testified that, if the victim had contracted chla-
mydia, it was unlikely that she would have exhibited
any symptoms of the disease. In addition, Scholand
indicated that, even if the victim had been infected with
chlamydia or another infection, her immune system
could have eradicated the infection without antibiotic
treatment. Finally, Grady’s testimony that the petitioner
was treated with antibiotics in October, 1999, coupled
with the lack of any testimony to suggest that the peti-
tioner sought any medical treatment after that date,
supported the reasonable inference that the petitioner
was not suffering from any sexually transmitted dis-
eases for the final year of the alleged abuse. Thus, if
the victim had contracted a sexually transmitted disease
from the petitioner, she would have contracted it prior
to October, 1999. By the time she was examined by
Kanz in December, 2000, her body would have had more
than one year to recover from any sexually transmitted
disease that she had contracted from the petitioner.9
Clearly, then, even the testimony of the petitioner’s
expert, Grady, fails to support the petitioner’s con-
tention that ‘‘[i]n the absence of evidence that [the vic-
tim] contracted [a sexually transmitted disease] it is
nearly impossible for [the petitioner] to have committed
the assaults . . . .’’
After reviewing the evidence in its entirety and con-
sidering its cumulative effect, we cannot conclude that
the petitioner has met his burden of proving that there
is a reasonable probability that, but for counsel’s failure
to introduce evidence related to the petitioner’s history
of sexually transmitted diseases, the jury would have
rendered a different verdict. See Wong v. Belmontes,
supra, 558 U.S. 20. Likewise, we cannot conclude that
counsel’s alleged errors deprived the petitioner of a fair
trial. Not only were the victim’s allegations of sexual
abuse bolstered by constancy of accusation testimony
and testimony that the victim had exhibited behavioral
changes during the time frame when the alleged abuse
occurred, but Kanz also testified that the results of
the victim’s physical examination were consistent with
‘‘repetitive penetration and the history that [the victim]
gave of repetitive penetration.’’ Moreover, defense
counsel’s closing argument during the criminal trial
focused the jury’s attention on the weaknesses in the
state’s case, namely, the victim’s dislike for the peti-
tioner, the fact that the victim’s mother initially treated
her allegations of abuse as being a dream, and inconsis-
tencies between the victim’s testimony and Kanz’
report. In particular, counsel emphasized that the victim
had testified about the petitioner putting ‘‘his private
[into her] butt,’’ whereas Kanz’ testimony indicated that
the findings from her examination of the victim’s vaginal
area, rather than the victim’s anal area, were consistent
with repetitive penetration.10
Although the state did not present a perfect case
during the criminal trial, it did present a strong case,
and the defense made certain that the evidentiary weak-
nesses were apparent to the jury. We are not persuaded
that there was a substantial likelihood that the outcome
of the present case would have been altered by evidence
that the petitioner had suffered from sexually transmit-
ted diseases. This is especially true given that the value
of that evidence was significantly undermined at the
habeas trial by additional evidence indicating that the
diagnoses were unconfirmed and nonspecific, that even
if the petitioner had been suffering from a sexually
transmitted disease it was far from certain that the
victim would have contracted the disease, and that if
the victim had contracted a sexually transmitted dis-
ease, she very well may have been asymptomatic and
her immune system could have eradicated the disease
without the need for antibiotics. In sum, the petitioner
has not met his burden of proving that had counsel
rendered effective assistance, the likelihood of a differ-
ent result is substantial, and not just conceivable. See
Harrington v. Richter, supra, 131 S. Ct. 792.
Furthermore, we disagree with the petitioner’s con-
tention during oral argument before this court that the
habeas court improperly narrowed its focus to the issue
of whether the petitioner was suffering from chlamydia
during the relevant time frame and the likelihood of
whether the victim would have contracted chlamydia
from the petitioner. The record indicates that when
the petitioner asked Grady, hypothetically, to state the
likelihood of whether the victim would have contracted
chlamydia and gonorrhea from the petitioner, the
respondent objected on the ground that the only posi-
tive culture result in the record was for chlamydia. The
petitioner’s counsel noted, summarily, that the peti-
tioner had been treated for sexually transmitted dis-
eases, but then, before the habeas court had issued a
ruling, agreed to narrow the hypothetical question to the
likelihood of whether the victim would have contracted
chlamydia. Subsequently, the majority of the petition-
er’s cross-examination of Scholand and the habeas
court’s questioning of Scholand centered on facts con-
cerning chlamydia. The petitioner does not point to any
instance in the record indicating that he believed that
the proceedings were unduly focused on issues con-
cerning chlamydia. Likewise, there is no indication that
the petitioner filed a motion claiming that the habeas
court’s memorandum of decision was incomplete,
incorrect or inaccurate. See, e.g., Bauer v. Bauer, 308
Conn. 124, 137, 60 A.3d 950 (2013) (when defendant
chose not to challenge factual finding when judgment
was rendered, he was precluded from challenging find-
ing for first time on appeal). The petitioner, having
acquiesced to the narrowing of questioning during the
habeas trial and having failed to challenge the habeas
court’s memorandum of decision, cannot make these
challenges for the first time on appeal.
Finally, we also reject the petitioner’s argument that
case law from other jurisdictions supports the reversal
of his conviction. Specifically, the petitioner cites two
cases for the proposition that, the ‘‘failure to introduce
evidence of a difference in [sexually transmitted dis-
ease] status between a defendant and a complainant in
a sexual assault case warrants reversal of convictions,
without requiring any evidence of the percentage likeli-
hood of transmission, even where there has been only
one occasion on which the [sexually transmitted dis-
ease] could have been transmitted.’’ See State v. Hamil-
ton, Docket No. 90-CR-0345, 1993 WL 541608 (Ohio App.
December 29, 1993); State v. Steele, 510 N.W.2d 661(S.D. 1994). Our reading of those cases, however, indi-
cates that neither case stands for the foregoing proposi-
tion or offers any other reasoning to suggest that the
petitioner’s conviction should be overturned.11 More-
over, the petitioner’s sweeping statement fails to take
into account the highly fact specific nature of the issues
at stake in matters such as the present case. See Sears
v. Upton, U.S. , 130 S. Ct. 3259, 3266, 177 L. Ed.
2d 1025 (2010) (‘‘Strickland inquiry requires . . . prob-
ing and fact-specific analysis’’).
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH, McDONALD and VERTEFEUILLE, Js., con-
curred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
We granted the petitioner’s petition for certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly affirm the judgment
of the habeas court rejecting the petitioner’s claim of entitlement to a new
trial on the ground of ineffective assistance of counsel?’’ Anderson v. Com-
missioner of Correction, 302 Conn. 905, 905–906, 23 A.3d 1246 (2011).
2
We refer to Hutcoe and Cizik collectively as counsel.
3
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’ The petitioner was acquitted of a second count of sexual
assault in the first degree in violation of § 53a-70 (a) (2).
4
The Appellate Court majority did not engage in a thorough analysis of
Strickland’s first prong, given its conclusion that the petitioner was not
prejudiced by counsel’s performance. See Anderson v. Commissioner of
Correction, supra, 128 Conn. App. 591 n.4. The Appellate Court did observe,
however, during its analysis of the petitioner’s threshold claim that the
habeas court had abused its discretion in denying his petition for certification
to appeal, that ‘‘the evidence quite strongly suggests that counsel should
have investigated the petitioner’s claims that he had suffered from sexually
transmitted diseases throughout the period that the state alleged he had
been sexually assaulting the victim and that counsel’s failure to do so likely
constituted ineffective assistance.’’ Id., 590–91.
5
In his dissent, Judge Borden concluded that the petitioner had been
prejudiced by his counsel’s deficient performance. Anderson v. Commis-
sioner of Correction, supra, 128 Conn. App. 599. Specifically, Judge Borden
concluded that ‘‘had the petitioner’s jury heard the available evidence of
his history of sexually transmitted diseases during the relevant time period,
the lack of evidence that the victim had contracted any such disease during
that period . . . and Grady’s testimony, [his] confidence in the reliability
of the jury’s verdict would [have been] undermined.’’ Id., 615. Judge Borden
concluded that, given the victim’s testimony that the sexual intercourse had
occurred on a repeated basis for a long period of time and ‘‘the petitioner’s
medical records and the habeas court’s own findings . . . that the petitioner
suffered from both chlamydia and gonorrhea on multiple occasions through-
out 1997, 1998 and 1999,’’ the habeas court’s limited focus on whether
the petitioner had chlamydia in January, 1998, was improper. (Emphasis
omitted.) Id., 616. In addition, Judge Borden concluded that competent
counsel would have made a persuasive argument to the jury on the basis
of Grady’s testimony that there is a transmission rate of 40 to 50 percent
for each sexual contact between an infected male and a female. Id. Finally,
in his dissent, Judge Borden concluded that because the only reasonable
construction of the record demanded the inference that the victim did not
contract any sexually transmitted disease, and because that inference, in
turn, would have cast serious doubt on the reliability of the victim’s testi-
mony, ‘‘the petitioner would have been able to argue that, absent [evidence
that she had contracted a sexually transmitted disease], there was powerful
reason to find reasonable doubt about her testimony.’’ Id., 619.
6
The petitioner also claims that counsel’s performance fell below an
objective standard of reasonableness and that the Appellate Court improp-
erly applied the applicable standard of review in assessing whether the
petitioner was prejudiced by counsel’s deficient performance. Because we
conclude that the petitioner was not prejudiced by any deficiency in coun-
sel’s performance, we need not consider whether the petitioner received
effective assistance of counsel at his criminal trial. See Strickland v. Wash-
ington, supra, 466 U.S. 697. In addition, even if we were to assume, arguendo,
that the Appellate Court failed to employ the appropriate standard of review
in assessing whether the petitioner had established prejudice, we need not
address the Appellate Court’s analysis given our conclusion that, under the
proper application of the standard of review, the petitioner was not preju-
diced by counsel’s performance.
7
We disagree with Judge Borden’s conclusion, echoed in Justice Palmer’s
dissenting opinion, that the habeas court found that the petitioner suffered
from both chlamydia and gonorrhea on multiple occasions throughout 1997,
1998 and 1999. Anderson v. Commissioner of Correction, supra, 128 Conn.
App. 616. Rather, the memorandum of decision indicates that the habeas
court found: (1) that the petitioner suffered from chlamydia in November,
1997; and (2) that the petitioner ‘‘did, in fact, suffer from various sexually
transmitted diseases.’’ With respect to the latter, the habeas court did not
find specifically that the petitioner suffered from chlamydia and gonorrhea
and it did not find that he suffered from those diseases throughout 1997,
1998 and 1999. The habeas court did not specify any time period with respect
to the second finding.
8
The habeas court, having observed the testimony of Grady and Scholand
first hand, credited Scholand’s testimony that the transmission rate for
chlamydia is 30 percent, rather than 40 percent. The petitioner contends in
his brief that ‘‘[t]he likelihood that [the victim] would have contracted the
disease would have increased with each encounter,’’ and argues that if the
transmission rate for each encounter was 30 percent, ‘‘the likelihood of
transmission would . . . jump to 51 percent after just two encounters.’’
As the respondent points out, ‘‘the petitioner posits a theory of statistical
probabilities that finds no support in the record before this court, nor does
he cite to any other reliable sources in support of his statistical analysis.’’
The record, in fact, contradicts the petitioner’s argument. During cross-
examination, the petitioner’s counsel asked Scholand: ‘‘Does that number
change if they have sex more than once?’’ Scholand responded, ‘‘I would
say it doesn’t change.’’ In response to continued questioning on this point
by the petitioner’s counsel, the habeas court stated: ‘‘The testimony was
there’s a 30 percent chance. It’s like flipping a coin. It’s a 50 percent chance.
The fact that you’ve gotten ten heads in a row, you’ve still got a 50 percent
chance of getting heads.’’ The petitioner, having failed to contest this point
at the habeas trial or to present any evidence to support his statistical theory
and analysis at that time, cannot rely on such theories or analysis presented
for the first time on appeal. See generally State v. Rizzo, 303 Conn. 71,
96–98 and n.16, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct.
133, 184 L. Ed. 2d 64 (2012).
9
With respect to the victim, the petitioner testified at the habeas trial that
he had no knowledge that she had contracted a sexually transmitted disease
during the relevant time frame, but he offered no further evidence on that
point. During the criminal trial, however, Kanz testified that the victim had
not required any follow-up medical care after her examination.
We disagree with Judge Borden’s conclusion in his dissent that the only
reasonable construction of the record demanded the inference that the
victim did not contract any sexually transmitted disease. Anderson v. Com-
missioner of Correction, supra, 128 Conn. App. 619. Rather, we conclude
that the only reasonable construction of the record demanded the inference
that the victim did not have any sexually transmitted diseases when she
was examined by Kanz. The evidence at the habeas trial clearly established
that the victim could have contracted a sexually transmitted disease from
the petitioner during 1998 or 1999 without even knowing it and could have
overcome the disease without antibiotic treatment prior to her examination
by Kanz in December, 2000.
10
The petitioner suggests that, ‘‘[i]f evidence of [the petitioner’s sexually
transmitted diseases] had been introduced [at the criminal trial], if counsel
had performed an investigation or consulted an expert on the validity of . . .
Kanz’ conclusions or the likelihood that [the victim] would have contracted [a
sexually transmitted disease from the petitioner], or if counsel had attempted
to impeach the credibility of [the victim] through cross-examination, there
is a reasonable probability that the outcome of [the criminal] trial would
have been different.’’ Despite this contention, the petitioner did not offer
any expert testimony at the habeas trial to contradict or undermine Kanz’
conclusions. In addition, because the victim did not testify at the habeas
trial, there is no indication of whether the petitioner would have been
successful in his attempt to undermine the credibility of the victim during
cross-examination.
11
The petitioner’s reliance on State v. Hamilton, supra, 1993 WL 541608,
is misplaced because the issue in that case was not whether the petitioner’s
conviction should have been overturned, but whether the petitioner had
alleged sufficient facts to permit him an evidentiary hearing on his claims
of ineffective assistance of counsel. Ultimately, after a hearing was ordered
and held, the Court of Appeals of Ohio affirmed the trial court’s denial of
the petition for postconviction relief. State v. Hamilton, Docket No. 98 C.A.
98, 2000 WL 282303, *6–7 (Ohio App. March 17, 2000). The appeals court
rejected the petitioner’s claim that there was a reasonable probability that
the outcome of his criminal trial would have been different had the jury
heard evidence of a second throat culture indicating that the victim did not
have gonorrhea, when the petitioner did have gonorrhea. Id., 6*.
Likewise, the petitioner’s reliance on Steele is misplaced because the issue
in that direct appeal was whether the defendant was entitled to a new trial
on the ground that the state had violated the defendant’s right to a fair trial
by withholding exculpatory evidence. State v. Steele, supra, 510 N.W.2d 666.
In Steele, the state withheld evidence that the victim had claimed to have
contracted chlamydia from the defendant and the defendant did not learn
of this claim until after his conviction. Id., 665–66. Testing confirmed that
neither the defendant nor his wife was infected. Id., 666. Not only was Steele
decided in a different procedural context, but unlike the present case, the
testing results in that case were confirmed, and the state’s case rested
entirely on the victim’s uncorroborated testimony that the sexual contact
was not consensual. Id.