Edward M. v. Commissioner of Correction , 186 Conn. App. 754 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
EDWARD M. v. COMMISSIONER OF CORRECTION*
(AC 41405)
DiPentima, C. J., and Lavine and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of sexual assault in the first degree
and risk of injury to a child, filed an amended second petition for a writ
of habeas corpus, claiming that D, the habeas counsel who represented
him in his first habeas action, had rendered ineffective assistance. Specif-
ically, the petitioner alleged that D rendered ineffective assistance as
habeas counsel by neglecting to allege that the petitioner’s trial counsel,
O, rendered ineffective assistance at the criminal trial by failing to have
the petitioner examined by a physician or otherwise present evidence
regarding the petitioner’s circumcision. The habeas court found, inter
alia, that O did present the testimony of the petitioner and A, his girlfriend
at the time of the alleged abuse, that the petitioner was circumcised,
and that that testimony directly conflicted with the testimony of the
victim and her mother, who stated that he was uncircumcised. The court
held that the import of medical evidence or photographs was clear
because the petitioner could not simultaneously be circumcised and
uncircumcised. The habeas court granted the second petition for a
writ of habeas corpus and rendered judgment thereon, from which
the respondent, the Commissioner of Correction, on the granting of
certification, appealed to this court. On appeal, the respondent claimed
that the habeas court incorrectly determined that evidence of whether
the petitioner was circumcised at the time of trial, which occurred years
after the alleged abuse, was relevant and admissible at trial, disregarded
O’s tactical decision to present evidence of the petitioner’s circumcised
penis only by means of testimonial evidence, and relied on O’s admission
that his failure to present physical evidence was a mistake. Held:
1. The habeas court properly determined that O’s conduct fell below the
wide range of reasonable professional assistance: any independent evi-
dence of the petitioner’s circumcision, even after the alleged assaults,
would have met the low standard for relevance of evidence, as such
evidence needs only to slightly support, or make more probable, that
the petitioner was circumcised during the time of the alleged assaults,
and O’s failure to offer additional evidence regarding the petitioner’s
circumcision could not be justified as a strategic decision to present
evidence of the petitioner’s circumcised penis only by means of testimo-
nial evidence, as O knew from the onset of the case that a central issue
was whether the petitioner was circumcised at the time of the alleged
crimes, O admitted that there was no strategic reason for not presenting
physical evidence of the circumcision and that he was distracted by
other evidence in the case, O’s failure to recognize the importance
of medical records or other independent evidence of the petitioner’s
circumcision was objectively unreasonable and clear from the record,
and, thus, the need to present such additional evidence beyond the
arguably discredited testimony of the petitioner and A should have been
obvious; moreover, the habeas court properly concluded that D also
rendered ineffective assistance of counsel, as O rendered ineffective
assistance, and D failed to raise that as a claim in the petitioner’s first
habeas trial even though the petitioner had included that claim in his
pro se petition and even though O tried to convey to D that he thought
the circumcision issue was the most fruitful area for inquiry.
2. The respondent could not prevail on the claim that any alleged prejudice
to the petitioner due to O’s failure to offer medical records, photographs,
or other evidence showing that the petitioner was circumcised was
speculative: there was a reasonable probability that further evidence of
the petitioner’s circumcision would have caused a different result, as
the petitioner received a fifty year sentence based, to a significant degree,
on the testimony from the victim and her mother that conflicted with
the testimony from the petitioner and A over whether the petitioner
was circumcised at the time of the alleged crimes, and the prejudicial
effect of the absence of that evidence was not merely speculative, as a
note from the jury asking why there was no medical evidence of the
petitioner’s circumcision clearly indicated that the jury was concerned
about that issue; accordingly, the petitioner was prejudiced by O’s failure
to provide independent evidence of the petitioner’s circumcision and,
thus, was also prejudiced by D’s performance in failing to raise this
claim during the first habeas appeal.
Argued October 10—officially released December 25, 2018
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, Graham, J.; judgment
granting the petition, from which the respondent, on
the granting of certification, appealed to this court.
Affirmed.
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Angela Macchiarulo, senior assistant state’s attor-
ney, and Michael Proto, assistant state’s attorney, for
the appellant (respondent).
Jennifer B. Smith, assigned counsel, for the appel-
lee (petitioner).
Opinion
LAVINE, J. This appeal arises out of the habeas
court’s granting of the second petition for a writ of
habeas corpus filed by the petitioner, Edward M. The
respondent, the Commissioner of Correction, appeals
from the judgment of the habeas court, claiming that
the court improperly (1) used the petitioner’s hospital
records for a purpose other than for which they were
admitted1 and (2) concluded that the petitioner’s prior
habeas counsel was ineffective and caused prejudice
to the petitioner by failing to allege the ineffective assis-
tance of the petitioner’s criminal trial counsel, who
failed to present evidence regarding the petitioner’s
circumcised penis. We disagree and, therefore, affirm
the judgment of the habeas court.
The following facts and procedural history, as set
forth in the habeas court’s memorandum of decision,
are relevant to our resolution of the issues on appeal.
The petitioner was arrested in the underlying criminal
matter in April, 2007, and charged with five counts of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2) and two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2) for crimes he was alleged to have committed in 2004,
2005, and 2006. Attorney John O’Brien represented the
petitioner in his 2008 criminal trial.
The habeas court found: ‘‘The case arose from sexual
abuse allegations that the complainant daughter, J,
made against her biological father, [the petitioner].
There was no physical evidence of sexual abuse and,
as the state admitted in closing argument at the criminal
trial, the case was a contest of credibility between [the
petitioner] and his daughter.’’
In a forensic interview, J described the petitioner’s
penis as having skin on it and wrinkles. At trial, J and her
mother testified that the petitioner was uncircumcised.
The petitioner, as well as A, his girlfriend at the time
of the alleged abuse, testified that he was circumcised
at the time of the alleged assaults. O’Brien did not offer
the petitioner’s medical records, testimony from a neu-
tral third party or medical witness, or photographs of
the petitioner’s penis into evidence.
The habeas court further stated: ‘‘During the first day
of deliberations, the jury sent out a note, [asking]: ‘Why
wasn’t there medical certification of his [circumcision]
. . . obtained for evidence.’ The court instructed the
jury that they needed to decide the case based on the
evidence presented by counsel. On the third day of
deliberations . . . the jury [found the petitioner guilty]
of all seven counts.’’ The trial court sentenced the peti-
tioner to a total effective term of fifty years incarcera-
tion followed by fifteen years of special parole. This
court upheld the conviction in State v. Edward M., 135
Conn. App. 402, 41 A.3d 1165, cert. denied, 305 Conn.
914, 46 A.3d 172 (2012).
In 2009, the self-represented petitioner filed a petition
for a writ of habeas corpus. In that habeas action, the
petitioner’s appointed counsel, Christopher Duby, filed
an amended petition but did not allege that O’Brien
rendered ineffective assistance due to his failure to
offer evidence that the petitioner was circumcised. The
petition was denied. The petitioner filed and then with-
drew an appeal of that judgment. In 2014, the petitioner
initiated the present habeas proceeding. In 2017, the
petitioner filed an amended habeas petition, alleging
that Duby rendered ineffective assistance as habeas
counsel by neglecting to allege that O’Brien rendered
ineffective assistance at the criminal trial by failing to
have the petitioner examined by a physician or other-
wise present evidence regarding the petitioner’s circum-
cision. The habeas court granted the amended petition,
and the respondent, on the granting of certification,
appealed. Additional facts will be set forth as necessary.
‘‘Our standard of review in a habeas corpus proceed-
ing challenging the effective assistance of [prior habeas]
counsel is well settled. Although a habeas court’s find-
ings of fact are reviewed under the clearly erroneous
standard of review . . . [w]hether the representation
a [petitioner] received at [a prior habeas proceeding]
was constitutionally inadequate is a mixed question of
law and fact. . . . As such, that question requires ple-
nary review by this court unfettered by the clearly erro-
neous standard.’’ (Internal quotation marks omitted.)
Toccaline v. Commissioner of Correction, 80 Conn.
App. 792, 797, 837 A.2d 849, cert. denied, 268 Conn. 907,
845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz,
543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . In Lozada, the court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective. [Id., 842]. As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-pronged test set forth in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d (1984)].
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable. Lozada v. Warden,
supra, 842–43. In other words, a petitioner claiming
ineffective assistance of habeas counsel on the basis
of ineffective assistance of trial counsel must essentially
satisfy Strickland twice . . . .
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion 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.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he was
entitled to reversal of the conviction and a new trial
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Gerald W. v. Commissioner of Correction,
169 Conn. App. 456, 463–65, 150 A.3d 729 (2016), cert.
denied, 324 Conn. 908, 152 A.3d 1246 (2017).
I
The respondent claims that the habeas court improp-
erly determined that Duby rendered ineffective assis-
tance by failing to allege that the petitioner’s criminal
trial counsel was ineffective for failing to present cer-
tain evidence regarding the petitioner’s circumcision.
Specifically, the respondent claims that the habeas
court incorrectly (1) determined that evidence of
whether the petitioner was circumcised at the time of
trial, which occurred years after the alleged abuse, was
relevant and admissible at trial,2 (2) disregarded O’Bri-
en’s tactical decision to present evidence of the petition-
er’s circumcised penis only by means of testimonial
evidence, and (3) relied on O’Brien’s admission that his
failing to present physical evidence was a mistake. We
are unpersuaded.
The habeas court found that ‘‘O’Brien did present the
testimony of the petitioner and [A] that [the petitioner]
was circumcised. Their testimony directly conflicted
with the testimony of J and her mother that the peti-
tioner was uncircumcised. The import of independent
and neutral medical evidence, or of photographs, is
clear because the petitioner cannot simultaneously be
circumcised and uncircumcised. . . .
‘‘[P]hotographs of [the petitioner’s] penis, showing
him to be circumcised, were placed into evidence at
the second habeas trial . . . after foundation questions
established that they fairly and accurately showed his
penis both as it looked at the current time and as it
looked from 2002 to the present. . . .
‘‘The relevancy of such contemporary photographic
and medical record evidence at the criminal trial is
readily apparent . . . .’’ The respondent claims that the
habeas court erred in reaching that conclusion, and
argues that any contemporaneous photographs and
medical records would be irrelevant to the question of
whether the petitioner was circumcised during the time
in which the assaults occurred. We disagree.
The well settled standard for relevance of evidence
is extremely low. ‘‘ ‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact
that is material to the determination of the proceeding
more probable or less probable than it would be without
the evidence.’’ (Emphasis added.) Conn. Code Evid.
§ 4-1. ‘‘It is axiomatic that, in order to be admissible,
evidence must be relevant to an issue in the case in
which it is offered. Evidence need not be conclusive
to be relevant . . . and [t]he fact that evidence is sus-
ceptible of different explanations or would support vari-
ous inferences does not affect its admissibility, although
it obviously bears upon its weight. So long as the evi-
dence may reasonably be construed in such a manner
that it would be relevant, it is admissible. . . . Evi-
dence is relevant if it has a logical tendency to aid the
trier in the determination of an issue. . . . We have
also held that evidence need not exclude all other possi-
bilities [to be relevant]; it is sufficient if it tends to
support the conclusion [for which it is offered], even to
a slight degree.’’ (Citations omitted; internal quotation
marks omitted.) State v. Marra, 222 Conn. 506, 521, 610
A.2d 1113 (1992). ‘‘Although it may be the case that
this evidence would not have exonerated the defendant
unequivocally, such is not the standard for relevance.’’
State v. Cerreta, 260 Conn. 251, 263, 796 A.2d 1176(2002).
The respondent argues that the evidence available to
O’Brien through medical records in his file, photo-
graphs, or third-party examination would only establish
that the petitioner was circumcised in 2008, two years
after the abuse ended, and would, thus, be irrelevant.
To be relevant, however, the evidence offered need not
show definitively that the petitioner was circumcised
in 2004, 2005, or 2006. To be relevant, the proffered
evidence needs only to slightly support, or make more
probable, that the petitioner was circumcised during
that time period. Any evidence of the petitioner’s cir-
cumcision, even after the alleged assaults, would meet
that low burden. The inference to be drawn from such
evidence is a determination that is proper for a jury,
and not the court.3 Likewise, whether to give such evi-
dence no weight, little weight, or much weight, is up
to the jury.
O’Brien’s failure to offer such evidence was error
and not, as the respondent argues, a tactical decision.
O’Brien knew from the onset of the case that a central
issue was whether the petitioner was circumcised at
the time of the alleged crimes, and, thus, he was aware
that establishing the fact that the petitioner was circum-
cised was of paramount importance.4 Yet, O’Brien relied
on the testimony of the petitioner and A alone to estab-
lish that the petitioner was circumcised at the time of
the alleged crimes, despite the fact that both witnesses
arguably had been discredited5 and O’Brien had at his
disposal multiple ways of introducing evidence that the
petitioner was circumcised at the time of trial. O’Brien
admitted that he did not consider taking a photograph
and offering it or having some appropriate person view
the petitioner’s circumcised penis and testify.
This failure to offer additional evidence regarding
the petitioner’s circumcision cannot be justified as a
strategic decision. O’Brien testified, ‘‘in all candor, I
was distracted . . . .’’ He admitted that there was no
strategic reason for not presenting physical evidence
of the circumcision and conceded that failing to present
physical evidence was a ‘‘huge mistake’’ that he
‘‘missed.’’ O’Brien testified, ‘‘I thought I did not have
any other evidence to offer at that point in time . . . .
I felt that there was nothing more I could do about the
circumcision issue, when now or within days of the
verdict, I recognized there were five or six or twenty-
seven things I could have done about the circumcision
issue, even though I had medical records in my hand.’’
As the habeas court states in its memorandum of deci-
sion, ‘‘O’Brien offered no tactical justification for not
offering the certified medical records or a photograph
of [the petitioner’s] privates. . . . Indeed, in disarm-
ingly candid testimony, O’Brien admitted that he was
distracted from the issue by other evidence in the case
and ‘missed’ the [importance of the medical records].’’6
The court also stated: ‘‘Given that the physical condi-
tion in question is circumcision, a permanent surgical
procedure, given that [the petitioner] was thirty-five
years old at the time of the criminal trial, at least thirty-
one at the time of the charged criminal acts, and that
he testified that he was circumcised at a young age,
given that his circumcised state was in dispute and
important in testing the credibility of J as to serious
sexual assault charges and coincidentally, or not, that
of her mother as well, and given that there was no
physical evidence of the assaults,’’ the importance of
offering the certified medical or photographic evidence
should have been recognized by competent counsel and
‘‘could have been easily offered by competent counsel
at that criminal trial with standard foundation questions
. . . .’’ (Footnote omitted.) The failure to recognize the
importance of the medical records or other independent
evidence of the petitioner’s circumcision is one that is
objectively unreasonable and clear from the record.
The need to present additional evidence beyond the
testimony of the petitioner and A should have been
obvious, and is not based, as the respondent argues,
on O’Brien’s regret in hindsight. We, therefore, agree
with the habeas court that O’Brien’s conduct fell below
the wide range of reasonable professional assistance.
Additionally, it is clear that Duby rendered ineffective
assistance of counsel, as the habeas court concluded. In
the first habeas trial, Duby failed to allege that O’Brien
rendered ineffective assistance by neglecting to present
additional evidence of the petitioner’s circumcision,
even though the petitioner had included this claim in
his pro se petition. Duby’s testimony to the habeas court
indicated that he might be confusing the petitioner’s
case with another similar case, and that he did not
‘‘remember if the issue of circumcision came up at the
criminal trial such to the point that it would have been
that distinctive.’’ Additionally, O’Brien testified that he
‘‘effusively’’ told Duby his thoughts on the circumcision
claim and ‘‘tried to convey to Attorney Duby that [he]
thought [the circumcision issue] was the most fruitful
area for . . . inquiry . . . .’’ As was stated in the
habeas court’s memorandum of decision, ‘‘[r]easonably
competent habeas counsel would have investigated the
claim identified by the petitioner and presented the
available evidence to the first habeas court . . . . That
failure, to a reasonable probability, prejudiced [the peti-
tioner] by depriving him of the same successful out-
come on the circumcision issue in his first habeas trial
as was achieved in this second habeas trial.’’ As O’Brien
rendered ineffective assistance, and Duby failed to raise
that as a claim in the petitioner’s first habeas trial,
we agree with the habeas court that Duby rendered
ineffective assistance as well.
II
The respondent’s final claim is that any alleged preju-
dice to the petitioner due to O’Brien’s failure to offer
medical records, photographs, or other evidence show-
ing that the petitioner was circumcised was speculative.
We disagree.
The petitioner received a fifty year sentence based,
to a significant degree, on the testimony from J and
her mother that conflicted with the testimony from the
petitioner and A over whether the petitioner was cir-
cumcised at the time of the alleged crimes. This question
was the major point of dispute at trial. We conclude that
there is a reasonable probability that further evidence
of the petitioner’s circumcision would have caused a
different result. Notably, ‘‘it is of particular significance
that we need not speculate about the prejudicial effect
that the [absence of the] evidence could have had on
the jury in this case, because the jury’s note to the court
during deliberations provides insight into the facts that
the jury considered when it was reaching its verdict.’’
State v. Miguel C., 305 Conn. 562, 577, 46 A.3d 126(2012). In the present case, the jury’s note, sent on
the first day of deliberations, asking why there was
no medical evidence of the petitioner’s circumcision,
clearly indicates that the jury was concerned about
this issue.
We, therefore, conclude that the petitioner was preju-
diced by O’Brien’s failure to provide evidence of the
petitioner’s circumcision and, thus, was also prejudiced
by Duby’s performance in failing to raise this claim
during the first habeas appeal. ‘‘Prejudice in this case
means that but for habeas counsel’s ineffectiveness,
there would be a reasonable probability that the habeas
court would have found that the petitioner is entitled
to a new trial.’’ Harris v. Commissioner of Correction,
108 Conn. App. 201, 210 n.3, 947 A.2d 435, cert. denied,
288 Conn. 911, 953 A.2d 652 (2008). But for Duby’s
failure to allege the successful claim of ineffective assis-
tance of trial counsel for neglecting to present evidence
regarding the petitioner’s circumcised penis, there is a
reasonable probability that the first habeas court would
have found in favor of the petitioner and granted a new
trial. Accordingly, we agree with the habeas court that
Duby rendered ineffective assistance.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The respondent argues that the hospital records were admitted into
evidence solely for the purpose of demonstrating what trial counsel had
available in his file and that the habeas court erred in considering the
substance of the records. Even if, as the respondent argues, the habeas
court erred in finding that the hospital records would have established that
the petitioner was circumcised at the time he was admitted to the hospital
in 2008, any error is harmless. There was ample admissible evidence that
the petitioner was circumcised at the time of his trial in 2008. We, therefore,
need not address this claim.
2
The respondent additionally argues that there was no evidence that the
medical records in O’Brien’s file would have been admissible under a busi-
ness record exception, but fails to argue any reason for inadmissibility other
than relevance. Therefore, we only address the relevance issue.
3
In response to such evidence at trial, the state could have argued or
presented evidence that the petitioner was not circumcised during
childhood.
4
Given that O’Brien testified that he had actually viewed the petitioner’s
penis, he should have recognized the importance of neutral additional evi-
dence of the petitioner’s circumcision.
5
Notably, O’Brien testified that he did not consider that the jury might
not credit the testimony of the petitioner or A even though the petitioner
had a perjury conviction and A was impeached with welfare fraud. The
following exchange occurred between the petitioner’s habeas counsel
and O’Brien:
‘‘Q. At the time of the trial, did you consider that the jury might not credit
the petitioner’s testimony that he was circumcised because of his prior
perjury conviction?
perjury conviction of him once we were able to explain it. I did not expect
that it would be a proper basis for anyone to disbelieve or discredit all of
his testimony.
‘‘Q. Did you consider that the jury might not credit his girlfriend’s testimony
because she was impeached on [cross-examination] with welfare fraud?
‘‘A. That thought did not occur to me.’’
6
It is noteworthy that the state and the court drew attention to the circum-
cision issue and the medical records, and O’Brien still failed to offer any
additional available evidence of the petitioner’s circumcision. During the
testimony of A, the state informed the habeas court that it was considering
having the petitioner examined, highlighting the importance of whether
the petitioner was circumcised. Furthermore, at the time when there were
discussions between counsel and the court about a potential examination,
the court noted that the petitioner’s hospital records were unsealed and
that O’Brien was not intending to use them. Rather than recognizing the
record’s importance with regard to the circumcision issue, O’Brien reaf-
firmed that he was not going to use the records.