Antonio A. v. Commissioner of Correction , 148 Conn. App. 825 ( 2014 )

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ANTONIO A.* v. COMMISSIONER
OF CORRECTION
(AC 33746)
Bear, Keller and Schaller, Js.
Argued January 8—officially released March 18, 2014
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Damon A. R. Kirschbaum, with whom, on the brief,
was Jennifer B. Smith, for the appellant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Gail P. Hardy, state’s attorney, and, on
the brief, Jo Anne Sulik, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
BEAR, J. The petitioner, Antonio A., appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. On appeal, the petitioner
claims that the court erred in denying his petition
because his ‘‘constitutional right to the effective assis-
tance of trial counsel, under the [s]ixth and [f]ourteenth
[a]mendments to the United States [c]onstitution, was
violated.’’ We affirm the judgment of the habeas court.
The following facts, as set forth in the petitioner’s
direct appeal; State v. Antonio A., 90 Conn. App. 286,
878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246(2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164
L. Ed. 2d 81 (2006); are relevant to the resolution of
the petitioner’s appeal. ‘‘On the evening of August 12,
2001, the [petitioner] returned home from work. His
daughter, the victim, who had become eight years old
the previous day, was sleeping in the living room. The
[petitioner] inserted his finger into the victim’s vagina
two times. The victim later told her mother, who did
not live with the [petitioner], what had happened and
said that her vaginal area had become painful. Her
mother took her to a physician, who discovered that
the victim had a vaginal injury consistent with digital
penetration. The state charged the [petitioner] with two
counts of risk of injury to a child and two counts of
sexual assault in the first degree. After a trial, the jury
returned a verdict of guilty on all counts. The court
also found the [petitioner] in violation of his probation,
which had been imposed for a prior conviction of pos-
session of narcotics. The court sentenced the [peti-
tioner] to a total effective term of forty-four years
incarceration, execution suspended after twenty-four
years, followed by ten years probation and lifetime sex
offender registration.’’ Id., 289. The petitioner appealed
from the judgment of conviction, and this court affirmed
the judgment of the trial court. The petition for certifica-
tion to appeal from our affirmance was denied by our
Supreme Court, and a petition for certification to appeal
to the Supreme Court of the United States also was
denied.
On October 16, 2009, the petitioner filed an amended
petition for a writ of habeas corpus claiming that his
criminal trial attorney had rendered ineffective assis-
tance of counsel. The habeas court denied the petition
following a trial, finding that counsel’s ‘‘assistance was
reasonable considering all the circumstances; he inves-
tigated the case, prepared for trial and employed rea-
sonable trial strategies.’’ Thereafter, the court granted
the petition for certification to appeal. This appeal
followed.
The petitioner claims that his ‘‘constitutional right to
the effective assistance of counsel, under the [s]ixth
and [f]ourteenth [a]mendments to the United States
[c]onstitution, was violated by his counsel’s failure to
adequately cross-examine, impeach, and otherwise
challenge the testimony of [1] the complainant, [2] Lisa
Murphy-Cipolla, [the clinical child interview supervisor
at Saint Francis Hospital and Medical Center in Hart-
ford, who conducted the forensic interview of the vic-
tim] and [3] Wendy Witt, M.D. [the emergency room
physician who examined the victim at Lawrence and
Memorial Hospital in New London]. Counsel also failed
to present the testimony of a forensic psychologist (or
other similar expert) with an expertise in investigating
and assessing child sexual abuse allegations.’’ We are
not persuaded.
‘‘As enunciated in Strickland v. Washington, [466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]
. . . [a] claim of ineffective assistance of counsel con-
sists of two components: a performance prong and a
prejudice prong. To satisfy the performance prong . . .
the petitioner must demonstrate that his attorney’s rep-
resentation 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. . . . A court
can find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong, whichever is eas-
ier.’’ (Citation omitted; internal quotation marks
omitted.) Ham v. Commissioner of Correction, 301
Conn. 697, 703–704, 23 A.3d 682 (2011).
I
The petitioner claims that counsel provided ineffec-
tive assistance by inadequately cross-examining,
impeaching, and otherwise challenging the testimony
of the victim, Murphy-Cipolla, and Witt. He argues that
the victim provided some inconsistent information
about exactly what had occurred and that counsel failed
to confront her inconsistencies, that counsel failed to
confront Murphy-Cipolla regarding her handling of the
inconsistencies during the victim’s interview, that coun-
sel failed to confront Murphy-Cipolla regarding her fail-
ure to follow her own protocol, and that counsel failed
to confront Witt as to her interpretation of the medical
evidence, which, in the petitioner’s view, could have
provided evidence that might have exonerated him. We
are not persuaded.
‘‘A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Toccaline v. Commissioner of Correction, 80
Conn. App. 792, 798–99, 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).
After carefully reviewing the record, we agree with
the habeas court’s conclusion that the petitioner failed
to demonstrate that trial counsel’s questioning of the
victim, Murphy-Cipolla, or Witt constituted deficient
performance. Our review of the trial transcripts, which
were provided as an exhibit at the habeas trial, does
not reveal any inconsistent testimony on the part of the
victim during the criminal trial, nor does the petitioner
point to any such inconsistencies during that trial. The
alleged inconsistencies occurred during Murphy-Cipol-
la’s interview of the victim.1 During the habeas trial,
however, trial counsel explained that during cross-
examination of the victim at the petitioner’s criminal
trial, he did not want to engage her regarding the specif-
ics of the sexual assault because he believed it would
not have been looked upon favorably by the jury, and
he did not want to open the door to the videotape of
the forensic interview being shown to the jury because
it showed an eight year old girl explaining that her
father had abused her sexually.2 Counsel explained: ‘‘I
didn’t want that interview in front of the jury. I don’t
think this child came off in a way that would do anything
other than harm our case.’’ He also testified that the
reason he did not engage Murphy-Cipolla about possible
inconsistent statements by the victim during Murphy-
Cipolla’s interview of her was because the victim
already had testified at the petitioner’s criminal trial
and he believed that Murphy-Cipolla could explain away
the inconsistencies, possibly testify as to why the incon-
sistencies may have occurred, and that then the jury
may have viewed her as an expert in this area. He
especially did not want to do this when there was physi-
cal evidence to support the victim’s allegations. As to
the petitioner’s claim that trial counsel was deficient
for not confronting Murphy-Cipolla about her failure to
follow her own protocols, at the petitioner’s habeas
trial, Murphy-Cipolla testified that protocols only serve
as guidelines to be used during an interview, that every
child is different, and that investigators must use profes-
sional judgment.
As to the petitioner’s allegation that trial counsel
failed to cross-examine Witt adequately regarding medi-
cal evidence that could have been used to exonerate
him, he has not directed us to any evidence that was
introduced during his habeas trial that was not intro-
duced during the criminal trial. Furthermore, the peti-
tioner’s criminal trial attorney explained that he tried
to keep the testimony of these witnesses focused
because he did not want to do anything that could
open the door to questions about the petitioner’s prior
conduct in light of previous allegations of sexual assault
made by another of his daughters ten years earlier.
‘‘An attorney’s line of questioning on examination of
a witness clearly is tactical in nature. [As such, this]
court will not, in hindsight, second-guess counsel’s trial
strategy.’’ (Internal quotation marks omitted.) Velasco
v. Commissioner of Correction, 119 Conn. App. 164,
172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994
A.2d 1289 (2010). Accordingly, although the petitioner
may be discontented with trial counsel’s tactics, we
conclude that he has failed to overcome the presump-
tion that trial counsel’s cross-examination of these wit-
nesses represented a sound trial strategy.
II
The petitioner also claims that counsel provided inef-
fective assistance by failing to present the testimony
of a forensic psychologist or psychiatrist with expertise
in investigating and assessing child sexual abuse allega-
tions. He argues: ‘‘It was objectively unreasonable for
counsel to have failed to present [this] testimony . . .
to show the inadequacies of the prosecuting authority’s
investigation, and to show a highly plausible alternative
innocent explanation for the allegations that the prose-
cuting authority failed to consider, investigate, and rule
out.’’ We conclude, as did the habeas court, that the
petitioner has failed to demonstrate that counsel’s per-
formance was deficient.
‘‘We begin by noting that there is no per se rule that
requires a trial attorney to seek out an expert witness.
Thompson v. Commissioner of Correction, 131 Conn.
App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902,
31 A.3d 1177 (2011). In Peruccio v. Commissioner of
Correction, 107 Conn. App. 66, 943 A.2d 1148, cert.
denied, 287 Conn. 920, 951 A.2d 569 (2008), however,
this court noted that in some cases, ‘the failure to use
any expert can result in a determination that a criminal
defendant was denied the effective assistance of coun-
sel.’ Id., 76. To support this proposition, this court,
in dicta, cited to other Connecticut cases and to the
conclusion in Lindstadt v. Keane, 239 F.3d 191 (2d Cir.
2001), that ‘failure to consult [an] expert on sexual
abuse of children constituted inadequate assistance.’
Peruccio v. Commissioner of Correction, supra, 76.’’
Stephen S. v. Commissioner of Correction, 134 Conn.
App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932,
43 A.3d 660 (2012).
In Stephen S., after analyzing relevant case law, we
concluded that ‘‘cases involving child sexual abuse may,
depending on the circumstances, require some pretrial
investigation and consultation with expert witnesses.’’
Id., 815. This can be true of both medical experts and
psychological experts. Id., 815, 817. Where trial counsel
has consulted with such experts, however, but made
the tactical decision not to produce them at trial, such
decisions properly may be considered strategic choices.
‘‘Furthermore, trial counsel is entitled to make strategic
choices in preparation for trial. See Johnson v. Com-
missioner of Correction, 222 Conn. 87, 96, 608 A.2d
667 (1992), quoting Strickland v. Washington, supra,466 U.S. 690, 689 (‘strategic choices made after thor-
ough investigation of [the] law and facts relevant to
plausible options are virtually unchallengeable’ and
‘[t]he [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy’ . . . .’’ Stephen S.
v. Commissioner of Correction, supra, 134 Conn.
App. 817–18.
The petitioner contends that trial counsel was defi-
cient for failing to present the testimony of a forensic
psychologist or psychiatrist in this case. During his
habeas trial, he presented as his sole expert, David
Mantell, a licensed clinical psychologist, who chal-
lenged Murphy-Cipolla’s interview techniques as incom-
plete and biased. Mantell, however, did not offer any
evidence or expert opinion to challenge her substantive
findings, or otherwise to explain how the alleged defi-
cient interview techniques led Murphy-Cipolla to any
incorrect conclusions. The petitioner’s trial attorney,
moreover, testified at the habeas trial that during the
criminal trial he reviewed the state’s file, the records of
the Department of Children and Families, the forensic
interview, medical reports from the hospital, including
from Witt, the diagnostic interview report, the intake
narrative, police reports, statements, the videotape of
the victim’s interview, and the photographic evidence.
Our review of the transcript of the habeas trial reveals
that trial counsel was not asked why he did not have
a forensic psychologist or psychiatrist testify on the
petitioner’s behalf. He was asked only whether he had
asked such a person to review the videotape of the
victim’s forensic interview with Murphy-Cipolla.
Although trial counsel testified that he did not recall
having a forensic psychologist review the videotape of
the victim’s forensic interview, he explained that he
had considerable training in the area of sexual assault,
having attended many seminars and training sessions,
and having read books and numerous journal articles.
He also explained that he has doctors whom he retains
in these matters to go over what is, and what is not,
problematic. He further testified that he reviewed the
photographs of the victim’s culpascope examination3
early in the case because he had ‘‘people [he could]
consult with on these things discreetly to understand
what the imaging is, the technology behind it, and what
[he was] looking at, and what [he] should be careful
about’’ and that he did discuss this with professionals.
He testified that he consulted a pediatrician, a gynecolo-
gist and a radiologist. He also explained that he did not
have a forensic psychologist or psychiatrist review the
videotape in this case because the interview occurred
two weeks after the initial disclosure, and he believed
that it was the initial disclosure that was important in
this case. He testified that what occurred during the
interview with Murphy-Cipolla ‘‘didn’t motivate what
[the victim] said to Dr. Witt on the date of that exam.
That is why [he did not have it reviewed]. It would not
have provided [him] more evidence.’’ The petitioner has
not pointed us to any additional evidence that could
have been presented by a forensic psychologist or psy-
chiatrist in his criminal trial that would have buttressed
his defense, and any such expert would have been sub-
ject to cross-examination by the prosecution.
In this case, the petitioner has not demonstrated that
trial counsel’s decisions were anything other than sound
trial strategy. We conclude, therefore, as did the habeas
court, that the petitioner has failed to demonstrate that
counsel’s performance was deficient.
III
In addition to finding that counsel’s performance was
not deficient, the habeas court concluded that the peti-
tioner failed to prove that he was prejudiced by any
alleged deficiency. Consistent with the decision of the
habeas court, we conclude that even if we were to
agree with one or more of the petitioner’s allegations
of deficient performance, he, nonetheless, has failed to
prove prejudice.
In this case, during the petitioner’s criminal trial,
there was evidence that the petitioner’s eight year old
daughter told her mother that the petitioner had hurt
her by digitally penetrating her vagina twice when she
was staying at the home of the petitioner, who, at that
time, was residing with one of his older daughters (the
victim’s sister) and her children, at least one of whom
was approximately the same age as the victim. The
victim’s mother also testified that she had experienced
no visitation or custody issues with the petitioner and
that the victim ‘‘was crazy for her dad’’ before the sexual
assault. The victim reiterated her sexual abuse allega-
tions to an emergency room physician (Witt), a social
worker from the Department of Children and Families
(Awilda Melendez), and a forensic interviewer (Murphy-
Cipolla), all of whom testified at the petitioner’s crimi-
nal trial, and all of whom, as constancy of accusation
witnesses, corroborated the victim’s statements, giving
essentially the same details of the sexual abuse. Addi-
tionally, there was medical evidence, consistent with
digital penetration, that was introduced at the petition-
er’s criminal trial.
After reviewing the record from the habeas trial, we
conclude that the petitioner failed to demonstrate with
a reasonable probability that the testimony of a forensic
psychologist or psychiatrist, or that additional cross-
examination of the victim, Murphy-Cipolla or Witt likely
would have resulted in a different outcome at his crimi-
nal trial.
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 abuse and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The petitioner also contends in his appellate briefs that there was a
retraction by the victim near the end of this videotaped interview. He sets
forth the following in his main appellate brief: ‘‘Later in the interview, the
[victim] said either ‘he never touched me or he never touch’ed.’ Murphy-
Cipolla thought that the [victim] said that the petitioner ‘never touch’ed,’
but acknowledged she could be wrong. The [victim] might have said that
the petitioner ‘never touched her.’ ’’ (Footnote omitted.) In his reply brief,
he contends: ‘‘At the end of the forensic interview, the [victim] retracted
the allegations altogether . . . .’’ (Emphasis in original.) During oral argu-
ment before this court, the petitioner’s appellate attorney forcefully empha-
sized the alleged significance of this alleged retraction or recantation by
the victim during the interview. When pointedly asked by Judge Keller during
rebuttal argument whether Murphy-Cipolla testified that the victim had
recanted at the end of the interview, the petitioner’s appellate attorney
clearly answered: ‘‘Yes.’’
A full review of the habeas trial transcript, however, reveals that during
cross-examination by the petitioner’s attorney, Murphy-Cipolla testified,
after a portion of the videotape was played twice to refresh her recollection,
that she was not sure what the victim, whom she described as ‘‘a Spanish-
speaking child,’’ was saying on that specific portion of the tape, but that it
sounded like ‘‘he never touch’ed.’’ She admitted that she did not follow up
on that statement during the interview.
Although the videotape of the forensic interview was marked only as an
exhibit for identification at the habeas trial; see Daigle v. Metropolitan
Property & Casualty Ins. Co., 257 Conn. 359, 364, 777 A.2d 681 (2001) (‘‘[t]he
purpose of marking an exhibit for identification is to preserve it as part of the
record’’ [internal quotation marks omitted]); we have reviewed the relevant
portion of the videotape only for the context of the alleged recantation,
which we discern as follows:
‘‘[Murphy-Cipolla]: Do you have any worries about your dad touching
some other kid like this?’’
‘‘[The Victim]: Yeah.
‘‘[Murphy-Cipolla]: Tell me about that.
‘‘[The Victim]: He never touch’ed—but I think he touched my cousin.’’
2
There is no claim that trial counsel was ineffective for not offering this
videotaped interview into evidence.
3
Dr. Witt explained at the petitioner’s criminal trial that a culpascope ‘‘is
a magnification machine that’s . . . attached to a video camera, and it
allows better lighting and higher magnification so you can see areas that
are not well lit and areas that light show injury that you wouldn’t see well
with the naked eye.’’ Witt used the culpascope to examine the victim’s
genital area.