Williams v. Commissioner of Correction , 177 Conn. App. 321 ( 2017 )

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JEFFREY WILLIAMS v. COMMISSIONER
OF CORRECTION
(AC 39049)
Sheldon, Mullins and Sullivan, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that his
trial counsel provided ineffective assistance by failing to challenge the
state’s medical evidence by consulting and calling as a witness a medical
expert with experience evaluating medical evidence in child sexual
abuse cases to rebut certain testimony offered by the state’s expert
witness, M. The habeas court rendered judgment denying the petition,
from which the petitioner, on the granting of certification, appealed to
this court. Held:
1. The habeas court properly rejected the petitioner’s claim that his trial
counsel was ineffective in failing to consult and call a rebuttal medical
expert witness: the record did not reveal any definitive finding by the
habeas court that trial counsel failed to consult with a medical expert
in preparation for the medical testimony of M, and because nothing in the
habeas court’s subordinate factual findings or in the evidence adduced
at the habeas trial required, as a matter of law, the conclusion that trial
counsel did not consult with an expert prior to cross-examining M, this
court would not assume the existence of such a fact on appeal; moreover,
the habeas court properly concluded that the petitioner had failed to
show that his trial counsel was deficient in failing to present testimony
from an expert witness to rebut M’s testimony, as there was nothing in
the record that prior to trial, the petitioner’s trial counsel knew about
an expert who disagreed with M’s opinion, trial counsel was not required
to track down each and every potential witness lead, and it as not for
this court to second-guess trial counsel’s strategy for confronting M.
2. The petitioner could not prevail on his claim that the habeas court improp-
erly determined that he had failed to prove that his trial counsel per-
formed deficiently by failing to present the testimony of a neurosurgeon
who had performed back surgery on the petitioner to establish that the
petitioner was incapable of physically or sexually abusing the victim,
the petitioner having failed to rebut the presumption that trial counsel’s
decision not to pursue such a theory by calling that witness was based
on reasonable professional judgment; that court found that trial counsel
had discussed the potential defense of physical incapability with the
petitioner but reasonably could have concluded that it was not an ade-
quate defense to the charged crimes, that such a defense would not
have been helpful because the jury was not likely to believe it, and that
evidence regarding the petitioner’s surgery and subsequent recovery
would not have been helpful to the theory of defense at trial, which
was that the victim had fabricated the allegations to avoid being returned
to her mother’s care.
Argued May 30—officially released October 17, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Michael W. Brown, for the appellant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Rebecca A. Barry, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
MULLINS, J. The petitioner, Jeffrey Williams, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. He claims that the
court improperly concluded that he failed to prove that
his trial attorney provided ineffective assistance of
counsel by failing (1) to challenge the state’s medical
evidence by consulting and calling as a witness a medi-
cal expert with experience evaluating medical evidence
in child sexual abuse cases, and (2) to present the testi-
mony of John Strugar, a neurosurgeon, who performed
back surgery on the petitioner in August, 1999. We
affirm the judgment of the habeas court.
This court’s decision in the petitioner’s direct appeal
sets forth the following relevant facts, which the jury
in the petitioner’s criminal trial reasonably could have
found, and procedural history. ‘‘Between the spring of
1997 and mid-October, 1999, the victim1 and her three
younger sisters lived with their mother, who was the
[petitioner’s] girlfriend, her uncle and the [petitioner]
at various residences in the city of New Haven. The
victim was approximately eight years old when the
[petitioner] began to abuse her. The [petitioner] beat
her about once a week for a variety of reasons. In
November, 1997, the [petitioner] knocked the victim to
the floor, causing a spiral fracture of her left humerus.
The victim was taken to a hospital, but her mother
instructed her and her sisters to attribute the injury
to the victim’s having fallen off her bed. On another
occasion, the [petitioner] banged the victim’s head on
a sink, breaking one of her teeth. When the victim told
her mother of the broken tooth, her mother instructed
her to go outside and play. The [petitioner] struck the
victim with a wooden paddle and on one occasion gave
her a black eye. The victim’s mother put makeup on
the bruise to cover it. The victim’s teacher, however,
noticed the makeup and bruise. At another time, the
school personnel discovered a hickey on the victim’s
neck. The victim had told her mother that the [peti-
tioner] had given her the hickey. The [petitioner] con-
vinced her mother that someone else had given the
victim a hickey and then beat the victim.
‘‘Sometime between August and October, 1999, the
[petitioner] placed the victim in a situation that was
likely to injure her health. When the victim did not
comply with the [petitioner’s] instructions, he made her
put her head out a window and then he poured water
over her head. He made her stay there until it was time
to go to school.
‘‘At night, the [petitioner] would awaken the victim
and take her to his room where he told her to rub his
back.2 Initially, the [petitioner] lay face down but would
turn over and instruct the victim to rub his lower body.
The [petitioner] took the victim’s hand and placed it
on his penis, at first outside of his boxer shorts and
then inside. The [petitioner’s] sexual abuse progressed
beyond back-rubs and having the victim touch his penis.
The [petitioner] began to grope the victim’s vagina, but-
tocks, thighs and undeveloped chest. On three or four
occasions, the [petitioner] forced his penis into the vic-
tim’s vagina.3 If the victim asked the [petitioner] to stop,
he would tell her not to tell him what to do. The victim
bled after the first and second rapes and told her
mother, who told her she was having her menstrual
period. Although the victim reported the abuse to her
grandfather, he refused to believe her. Consequently,
the victim did not report the continuing abuse for fear
that no one would believe her. The victim eventually
disclosed the [petitioner’s] sexual abuse to her cousin
but implored her not to tell anyone.
‘‘In early 2001, the victim, her sisters and mother
moved to a homeless shelter in Waterbury, after which
the victim and her sisters were removed from their
mother’s custody by the department of children and
families (department). The victim was placed in a foster
home. While the victim and her foster mother were
watching a television movie about sexual abuse, the
victim ran from the room crying. Because the victim
was so overcome with emotion, her foster mother
waited until the next day to discuss the subject with
her. During the conversation, the victim confided that
the [petitioner] had raped her and hurt her private parts.
The foster mother reported the complaint to a depart-
ment social worker.
‘‘Subsequently, the victim was interviewed by a foren-
sic specialist, examined by a pediatric nurse prac-
titioner [Judith Moskal-Kanz, who also served as a
forensic medical examiner for child sexual abuse and
child abuse] and interviewed by a detective, Michael
Hunter. [Moskal-Kanz] found a furrow running through
the victim’s hymen, an injury consistent with penile
penetration. Hunter also interviewed the [petitioner]
and recorded his statement. According to the [peti-
tioner], subsequent to his having back surgery, he slept
in a hospital bed in the living room where he awoke
one night to find the victim stroking his penis. The
[petitioner] so informed the victim’s mother, who beat
the victim. One month later, the [petitioner] again
awoke and found the victim fondling his penis. He again
reported the incident to the victim’s mother who admin-
istered ‘a whupping.’ In his statement, the [petitioner]
acknowledged having spanked the victim but denied
that he ever punched her, hit her, broke her arm or had
sexual intercourse with her.
‘‘The [petitioner] was arrested and charged on
December 5, 2002. The state filed a twelve count long
form information. The theory of defense was that the
victim lied about the abuse to avoid being returned to
the care of her mother.’’ (Footnotes in original.) State
v. Williams, 102 Conn. App. 168, 170–73, 181, 926 A.2d
7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). As
part of its case-in-chief, ‘‘the state called . . . Moskal-
Kanz . . . as a witness. Moskal-Kanz testified . . .
that scarring on the victim’s hymen was consistent with
penile penetration and consistent with the victim’s
description of the intercourse the defendant had forced
on her.’’ Id., 181.
The jury found the petitioner guilty of all counts
charged, namely, two counts of sexual assault in the
third degree in violation of General Statutes § 53a-72a
(a) (1), seven counts of risk of injury to a child in
violation of General Statutes (Rev. to 1997 and 1999)
§§ 53-21 (1) and (2), and three counts of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2). Id., 170. The petitioner was sentenced to
thirty-five years imprisonment. Id. This court upheld
his conviction on direct appeal. Id., 209.
The petitioner filed an amended petition for a writ
of habeas corpus on May 13, 2015. Relevant to this
appeal, the petitioner alleged that his trial attorney,
Michael Moscowitz, rendered ineffective assistance of
counsel by (1) failing to consult with and call as a
witness a medical expert with experience evaluating
medical evidence in child sexual abuse cases for the
purpose of refuting Moskal-Kanz’ testimony that her
colposcopic examination of the victim revealed trauma
to the victim’s hymen consistent with sexual abuse, and
(2) failing to present testimony from Strugar regarding
the petitioner’s August, 1999 back surgery and subse-
quent incapacitation.
Following a three day trial, the habeas court issued
a memorandum of decision on March 3, 2016, denying
the petition for a writ of habeas corpus. As to both
alleged bases for ineffective assistance, the habeas
court found that the petitioner had failed to meet his
burden of demonstrating that Moscowitz’ performance
was objectively unreasonable. Following a grant of a
petition for certification to appeal, this appeal followed.
Additional facts and procedural history will be set forth
where necessary.
As a preliminary matter, we set forth our standard of
review and the applicable legal principles. ‘‘The habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless
they are clearly erroneous. . . . Historical facts consti-
tute a recital of external events and the credibility of
their narrators. . . . 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 testi-
mony. . . . The application of the habeas court’s fac-
tual findings to the pertinent legal standard, however,
presents a mixed question of law and fact, which is
subject to plenary review. . . .’’ (Internal quotation
marks omitted.) Thomas v. Commissioner of Correc-
tion, 141 Conn. App. 465, 470, 62 A.3d 534, cert. denied,
308 Conn. 939, 66 A.3d 881 (2013).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Although a petitioner can succeed
only if he satisfies both prongs, a reviewing court can
find against a petitioner on either ground.’’ (Citations
omitted; internal quotation marks omitted.) Breton v.
Commissioner of Correction, 325 Conn. 640, 668–69,
159 A.3d 1112 (2017).
‘‘[T]he performance inquiry must be whether coun-
sel’s assistance was reasonable considering all the cir-
cumstances.’’ Strickland v. Washington, supra, 466 U.S.
688. ‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance
. . . .’’ (Internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 679, 51
A.3d 948 (2012).
‘‘[E]ffective assistance of counsel imposes an obliga-
tion [on] the attorney to investigate all surrounding
circumstances of the case and to explore all avenues
that may potentially lead to facts relevant to the defense
of the case.’’ (Internal quotation marks omitted.) Id.,
680. ‘‘Nevertheless, strategic choices made after thor-
ough investigation of law and facts relevant to plausible
options are virtually unchallengeable; [but] strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unneces-
sary.’’ (Internal quotation marks omitted.) Id.
‘‘The reasonableness of an investigation must be eval-
uated not through hindsight but from the perspective
of the attorney when he was conducting it.’’ State v.
Talton, 197 Conn. 280, 297–98, 497 A.2d 35 (1985). Trial
counsel ‘‘need not track down each and every lead
or personally investigate every evidentiary possibility
before choosing a defense and developing it. . . .’’
(Internal quotation marks omitted.) Ricks v. Commis-
sioner of Correction, 98 Conn. App. 497, 502, 909 A.2d
567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49
(2007). Accordingly, the habeas court cannot second-
guess trial counsel’s decision not to investigate or call
certain witnesses when ‘‘counsel learns of the sub-
stance of the witness’ testimony and determines that
calling that witness is unnecessary or potentially harm-
ful to the case . . . .’’ Gaines v. Commissioner of Cor-
rection, supra, 306 Conn. 681–82.
Mindful of these principles, we turn to the petitioner’s
claims on appeal.
I
The petitioner first claims that the habeas court
improperly determined that he failed to prove that Mos-
cowitz rendered ineffective assistance by failing to con-
sult with—and, ultimately, call as a witness—a medical
expert in order to challenge Moskal-Kanz’ testimony
that her colposcopic examination of the victim revealed
injuries consistent with sexual abuse. We disagree.
The following additional facts are relevant to this
claim. As previously set forth, Moskal-Kanz testified
at the petitioner’s criminal trial that her colposcopic
examination of the victim revealed scarring or furrow-
ing on the victim’s hymen consistent with sexual abuse.
State v. Williams, supra, 102 Conn. App. 181. At the
petitioner’s habeas trial, Jennifer Canter, a child abuse
pediatrician, testified that she had examined the vic-
tim’s colposcopy photographs and determined, con-
trary to Moskal-Kanz, that the victim had an ‘‘absolutely
normal exam,’’ a ‘‘normal’’ hymen that exhibited ‘‘no
scar or furrowing,’’ and that there was ‘‘no affirmative
evidence of laceration.’’
The habeas court, however, found that the petitioner
failed to demonstrate that Moscowitz performed defi-
ciently by failing to consult or call as a witness an expert
for purposes of challenging Moskal-Kanz’ testimony at
the petitioner’s criminal trial. The habeas court stated:
‘‘Regarding the sexual abuse and medical findings [of
Moskal-Kanz], [Moscowitz] testified credibly to con-
sulting with medical experts in practically every case
he has tried with medical findings of trauma, although
he could not specifically recall consulting with a medi-
cal expert in this case. [Moscowitz] had access to all
of the relevant medical information in the case as part
of the discovery process. He testified credibly that if,
in his consultation with a medical expert, the consultant
opined that the findings were ‘normal,’ he would either
have the witness take the stand in his case-in-chief or
use the information to cross-examine the state’s wit-
ness.’’ Accordingly, the habeas court found: ‘‘It is clear
. . . that . . . Moscowitz’ performance in . . . either
relying on his experience and/or consulting with a medi-
cal expert was not objectively unreasonable or constitu-
tionally deficient. It would be the very definition of the
kind of second-guessing disfavored in the law to allow
the petitioner to substitute both the strategic judgments
and the newly discovered medical expert [Canter] . . .
for that of [Moscowitz].’’
The petitioner claims that the habeas court improp-
erly concluded that he failed to demonstrate that Mos-
cowitz performed deficiently by ‘‘failing to consult with
and present [as a witness] a medical expert’’ to chal-
lenge Moskal-Kanz’ testimony. We disagree.
The petitioner’s claim on appeal is based largely upon
a mischaracterization of the record. He grounds his
claim that Moscowitz performed deficiently on the fac-
tual assertion that Moscowitz ‘‘fail[ed] to consult with
. . . a medical expert’’ and took Moskal-Kanz’ testi-
mony ‘‘at face value.’’ Our review of the habeas court’s
memorandum of decision, however, does not reveal any
finding that Moscowitz failed to consult with a medical
expert in preparation for Moskal-Kanz’ testimony. It,
instead, reveals that the habeas court credited Moscow-
itz’ testimony that, although he consulted with medical
experts in ‘‘practically every case’’ he has tried in which
the state presented medical evidence trauma, he could
not recall specifically whether he used one to assess
Moskal-Kanz’ testimony that the victim’s hymen exhib-
ited signs of sexual abuse. Indeed, the habeas court
found that Moscowitz was not deficient for ‘‘either rely-
ing on his experience and/or consulting with a medical
expert,’’ indicating that it had not made a definitive
finding as to whether Moscowitz consulted an expert
in the petitioner’s case, as opposed to relying on his
own experience cross-examining the state’s medical
witnesses in other cases. (Emphasis added.) Accord-
ingly, the petitioner’s claim that Moscowitz performed
deficiently by failing to consult with an expert in prepa-
ration for Moskal-Kanz’ testimony must fail because
there is no factual basis for it in the record.4
It appears that the petitioner attempts to avoid this
fatal gap in the record by two methods. First, he asserts
that ‘‘[r]easonable inferences to be drawn from the
record indicate that [Moscowitz] did not consult with a
medical expert in preparing for the petitioner’s criminal
trial.’’ It is well settled, however, that ‘‘it is not the
function of this court . . . to make factual findings
. . . . Conclusions of fact may be drawn on appeal only
where the subordinate facts found [by the trial court]
make such a conclusion inevitable as a matter of law
. . . or where the undisputed facts or uncontroverted
evidence and testimony in the record make the factual
conclusion so obvious as to be inherent in the trial
court’s decision.’’ (Emphasis added; internal quotation
marks omitted.) State v. Shashaty, 251 Conn. 768, 783,
742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S.
Ct. 1734, 146 L. Ed. 2d 653 (2000). Nothing either in the
habeas court’s subordinate factual findings or in the
evidence adduced at the habeas trial requires, as a
matter of law, the conclusion that Moscowitz did not
consult with an expert prior to cross-examining Moskal-
Kanz. We, therefore, cannot assume the existence of
such a fact on appeal.5
Second, the petitioner argues in the alternative that,
even if the habeas court did not find that Moscowitz
had not consulted with an expert, it also did not find
that he had. Because, however, it is the petitioner’s
burden to prove the factual basis for his ineffective
assistance claim; see Gaines v. Commissioner of Cor-
rection, supra, 306 Conn. 679; and not the respondent’s
burden to prove a negative, the fact that the habeas
court did not find that Moscowitz consulted an expert
does not help the petitioner. There was no evidence
adduced at the habeas trial affirmatively establishing
that Moscowitz did not consult an expert. That Moscow-
itz could not remember specifically his method for pre-
paring for Moskal-Kanz’ testimony, which had occurred
many years prior to the habeas trial—and thus could
not rule out the possibility that he relied on his experi-
ence and cross-examined Moskal-Kanz without help
from an expert, as he did in some cases—does not
overcome the strong presumption of constitutionally
effective counsel. As the United States Court of Appeals
for the Second Circuit has observed, ‘‘[t]ime inevitably
fogs the memory of busy attorneys. That inevitability
does not reverse the Strickland presumption of effec-
tive performance. Without evidence establishing that
counsel’s strategy arose from the vagaries of ignorance,
inattention or ineptitude . . . Strickland’s strong pre-
sumption must stand.’’ (Citation omitted; internal quota-
tion marks omitted.) Greiner v. Wells, 417 F.3d 305, 326
(2d Cir. 2005), cert. denied sub nom. Wells v. Ercole,
546 U.S. 1184, 126 S. Ct. 1363, 164 L. Ed. 2d 72 (2006).
Accordingly, the petitioner’s claim that Moscowitz per-
formed deficiently because he failed to consult an
expert witness must fail.
We also agree with the habeas court that the peti-
tioner failed to meet his burden of establishing that
Moscowitz performed deficiently by failing to present
testimony from an expert witness at the petitioner’s
criminal trial in order to refute Moskal-Kanz’ testimony.
Although Canter testified at the habeas trial that her
examination of the victim’s colposcopic photographs
showed no signs of abnormalities, there are no findings
in the habeas court’s memorandum of decision that,
prior to trial, Moscowitz knew about an expert who,
like Canter, disagreed with Moskal-Kanz’ opinion.
To the contrary, the habeas court credited Moscow-
itz’ testimony that, had he consulted with a medical
expert who believed that the victim’s hymen was ‘‘nor-
mal,’’ he would have either called that expert as a wit-
ness at trial or used the information to cross-examine
Moskal-Kanz. This finding, together with the fact that
Moscowitz did not call, or otherwise use the informa-
tion provided by, an expert to refute Moskal-Kanz’ testi-
mony regarding the results of the victim’s colposcopic
examination, leads us to the conclusion that Moscowitz
had not encountered such an expert prior to the peti-
tioner’s criminal trial. Although Moscowitz could have
undertaken a search in hopes of finding such an expert,
the constitution does not require trial lawyers to ‘‘track
down each and every lead or personally investigate
every evidentiary possibility before choosing a defense
and developing it.’’ (Internal quotation marks omitted.)
Gaines v. Commissioner of Correction, supra, 306
Conn. 683. Moscowitz testified that his strategy for con-
fronting Moskal-Kanz instead was to establish the possi-
bility that the trauma to the victim’s hymen could have
been caused by something other than penile penetra-
tion; we cannot second-guess that strategy here.
Accordingly, the habeas court properly rejected this
ineffective assistance claim.
II
The petitioner next claims that the court improperly
determined that he failed to prove that Moscowitz per-
formed deficiently by failing to present the testimony of
Strugar, the petitioner’s neurosurgeon who performed
back surgery on the petitioner in August, 1999, to estab-
lish that he was incapable of physically or sexually
abusing the victim. We are not persuaded.
Regarding the failure to call allegedly exculpatory
witnesses, ‘‘counsel will be deemed ineffective only
when it is shown that a defendant has informed his
attorney of the existence of the witness and that the
attorney, without a reasonable investigation and with-
out adequate explanation, failed to call the witness at
trial.’’ (Internal quotation marks omitted.) Ampero v.
Commissioner of Correction, 171 Conn. App. 670, 685,
157 A.3d 1192 (2017). Our cases recognize that a habeas
court cannot second-guess counsel’s decision not to call
certain witnesses or pursue potential defenses when
he ‘‘learns of the substance of the witness’ testimony
and determines that calling that witness is unnecessary
or potentially harmful to the case . . . .’’ Gaines v.
Commissioner of Correction, supra, 306 Conn. 681–82;
see, e.g., Mozell v. Commissioner of Correction, 291
Conn. 62, 79, 967 A.2d 41 (2009) (counsel not deficient
when decision not to call witness ‘‘was entirely consis-
tent with . . . theory of defense’’); Thompson v. Com-
missioner of Correction, 131 Conn. App. 671, 694–96,
27 A.3d 86 (decision not to interview and present two
witnesses did not render pretrial investigation inade-
quate because counsel determined that testimony
would have been unhelpful to theory of defense), cert.
denied, 303 Conn. 902, 31 A.3d 1177 (2011); see also
Strickland v. Washington, supra, 466 U.S. 691 (‘‘when
a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investi-
gations may not later be challenged as unreasonable’’).
In the present case, the habeas court found that Mos-
cowitz had discussed the potential defense of physical
incapability with the petitioner but concluded that, in
light of other facts known to him, such a defense ‘‘would
not have been helpful as the [jury] was not likely to
believe it.’’6 The habeas court credited Moscowitz’ testi-
mony that, despite any diminished physical capability,
the petitioner was not incapacitated or bedridden dur-
ing the relevant time period, but, indeed, was suffi-
ciently ambulatory to go out and search for drugs with
the victim’s mother.7 The habeas court also credited
Moscowitz’ testimony that the petitioner’s purported
physical incapacity was not an adequate defense to the
charged crimes because it did not account for other
evidence that the state was going to present, such as
that the petitioner frequently woke the children during
the night to rub his back. The theory of defense at trial
was instead that the victim fabricated the assaults to
avoid being returned to her mother’s care. As such,
Moscowitz reasonably could have concluded that evi-
dence regarding the petitioner’s surgery and subsequent
recovery plainly would not have been helpful to that
theory of defense. Accordingly, the habeas court prop-
erly concluded that the petitioner had failed to rebut
the presumption that Moscowitz’ decision not to pursue
the defense of physical incapacity by calling Strugar as
a witness was based on reasonable professional judg-
ment. See Thompson v. Commissioner of Correction,
supra, 131 Conn. App. 691–92.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom her identity may be ascertained. See General Statutes § 54-86e.
2
‘‘The victim’s mother was employed at night.’’ State v. Williams, 102
Conn. App. 168, 171 n.3, 926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d
267 (2007).
3
‘‘A colored drawing by the victim depicting the [petitioner] on top of
her in a bed and the [petitioner’s] penis in her vagina was placed into
evidence. The victim was depicted crying, and the [petitioner] was shown
with a smirk on his face.’’ State v. Williams, 102 Conn. App. 168, 171 n.4,
926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007).
4
We also note that, to the extent that the habeas court’s memorandum
of decision is ambiguous regarding whether it found that Moscowitz had
not consulted with an expert witness, the petitioner failed to move for an
articulation pursuant to Practice Book § 66-5.
5
At oral argument before this court, the petitioner argued for the first
time that the court’s failure to find specifically that Moscowitz did not
consult a medical expert about the subject of Moskal-Kanz’ testimony was
clearly erroneous. We disagree. Moscowitz testified at the habeas trial that
he consulted with expert witnesses in ‘‘practically every case’’ in which the
state presented medical evidence of trauma, but that he could not remember
specifically if he did so in the petitioner’s case. There was no other affirmative
evidence presented that the petitioner did not consult an expert. Therefore,
to the extent the habeas court found that the petitioner failed to prove that
Moscowitz did not consult an expert, that finding is supported by the record
and, therefore, is not clearly erroneous. See State v. Gutierrez, 132 Conn.
App. 233, 239, 31 A.3d 412 (2011) (‘‘[a] finding of fact is clearly erroneous
when there is no evidence in the record to support it . . . or when although
there is evidence to support it, the reviewing court on the entire evidence
is left with thedefiniteandfirmconvictionthat a mistake has been committed’’
[internal quotation marks omitted]).
6
The habeas court’s memorandum of decision provides in relevant part:
‘‘[Moscowitz] testified [at the habeas trial] that he and the petitioner dis-
cussed the petitioner’s back surgery in the course of trial preparation as
well as the petitioner’s theory that he was not physically capable of commit-
ting the assaults based on his back problems. [Moscowitz] specifically testi-
fied that the petitioner’s preferred theory of defense would be severely
damaged at trial based on potential evidence that the petitioner would wake
the children up in the nighttime hours to rub his back. [Moscowitz] aptly
described this potential evidence as ‘not good.’ [Moscowitz] further testified
to the weakness of this potential defense theory based on evidence that the
petitioner was not bedridden at all, instead being sufficiently ambulatory
to be out looking for drugs with the victim’s mother during the relevant
time period. Based on the foregoing, [Moscowitz] reached the conclusion
that evidence suggesting that the petitioner was physically incapable of
committing the offense[s] would not have been helpful as the [jury] was
not likely to believe it.’’
7
The proposition that the petitioner lacked the physical capability of
committing the charged crimes was especially dubious in light of Strugar’s
testimony at the habeas trial. He testified that the petitioner was a ‘‘large
muscular person’’ of around 271 pounds. He further testified that, following
his surgery in August, 1999, the petitioner experienced six to eight weeks
of ‘‘relative incapacity’’ that included pain and stiffness, lifting restrictions,
and limited range of motion. Strugar further testified, however, that, by
early September, 1999, the petitioner’s pain had ‘‘decreased remarkably.’’ The
habeas court credited Strugar’s testimony that, at that time, he recommended
that the petitioner ‘‘get . . . out of bed’’ and start ‘‘exercising his muscles.’’
The habeas court further found that records from a September 27, 1999
visit indicated that the petitioner was ‘‘healing appropriately.’’ Strugar also
testified that, in October, 1999, there was ‘‘no objective reason’’ why the
petitioner could not lift 120 pounds, and that the petitioner had ‘‘excellent
strength in the legs’’ and could walk for two or three blocks before having
to rest. Finally, Strugar testified that the petitioner’s arms ‘‘were never an
issue. They were always strong.’’