Brian S. v. Commissioner of Correction , 172 Conn. App. 535 ( 2017 )

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BRIAN S.* v. COMMISSIONER
OF CORRECTION
(AC 38359)
DiPentima, C. J., and Mullins and Flynn, Js.
Argued January 30—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
MULLINS, J. The petitioner, Brian S., appeals from
the judgment of the habeas court denying his amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court erred in concluding that
he failed to prove that his criminal trial counsel had
provided ineffective assistance. We affirm the judgment
of the habeas court.
The following facts and procedural history inform
our review. After years of repeatedly sexually assaulting
his minor daughter, the petitioner was arrested,
charged, and convicted of two counts of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2) and one count of risk of injury to a child in
violation of General Statutes § 53-21 (2).1 This court
affirmed the petitioner’s conviction on direct appeal.
State v. Brian L. S., 129 Conn. App. 902, 19 A.3d 275,
cert. denied, 302 Conn. 907, 23 A.3d 1246 (2011).
On September 17, 2014, the petitioner filed an
amended petition for a writ of habeas corpus in which
he alleged that his criminal trial counsel had provided
ineffective assistance. After a trial, the court denied the
petition. The court concluded that the petitioner failed
to prove his claim because he failed to establish that
counsel’s performance had been deficient or that he
was prejudiced by any alleged deficiencies. The court,
thereafter, granted the petition for certification to
appeal from the judgment denying the petitioner’s
habeas petition. This appeal followed.
On appeal, the petitioner claims that the court erred
in concluding that he failed to prove his claim of ineffec-
tive assistance of criminal trial counsel. The plaintiff
specifically claims: ‘‘The habeas court erred by finding
that the petitioner’s right to the effective assistance of
counsel was not violated by counsel’s failure to ade-
quately challenge the medical evidence offered by the
prosecuting authority from the complainant’s colpos-
copic examination.’’2 He asserts that counsel’s ability
to challenge the medical evidence was hampered by his
failure to consult ‘‘with a qualified expert with specific
expertise in forensic medical examinations of sus-
pected child abuse victims . . . .’’ We are not per-
suaded.
Before analyzing the petitioner’s claim, we set forth
the applicable law and the standard of review governing
claims of ineffective assistance of counsel. ‘‘When
reviewing the decision of a habeas court, the facts found
by the habeas court may not be disturbed unless the
findings were clearly erroneous. . . . The issue, how-
ever, of [w]hether the representation [that] a defendant
received at trial was constitutionally inadequate is a
mixed question of law and fact. . . . As such, that ques-
tion requires plenary review by this court unfettered
by the clearly erroneous standard. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . .
‘‘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 . . . .’’ (Citations
omitted; internal quotation marks omitted.) Michael T.
v. Commissioner of Correction, 319 Conn. 623, 631–32,
126 A.3d 558 (2015).
‘‘With respect to the performance prong of Strick-
land, we are mindful that [j]udicial scrutiny of counsel’s
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s
assistance after conviction 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 omission of counsel was unreasonable.
. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances 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
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . There are countless
ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way. . . .
‘‘Similarly, the United States Supreme Court has
emphasized that a reviewing court is required not sim-
ply to give [the trial attorney] the benefit of the doubt
. . . but to affirmatively entertain the range of possible
reasons . . . counsel may have had for proceeding as
[he] did . . . . [S]trategic choices made after thorough
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.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Id., 632–33.
Turning to the performance prong of the Strickland
test, as applied to the present case, the petitioner con-
tends that his ‘‘constitutional right to the effective assis-
tance of counsel . . . was violated by his counsel’s
failure to consult with, retain, and present the testimony
of a forensic pediatric gynecologist, or other qualified
medical expert, with an expertise in investigating and
evaluating child sexual abuse allegations.’’ He contends
that this information and testimony was necessary so
that counsel could combat and adequately challenge
the testimony offered by the state’s witness, Edward
C. Kavle, a pediatrician.
In response, the respondent, the Commissioner of
Correction, argues that the petitioner’s claim lacks
merit because trial counsel consulted with Bernard
Luck, a gynecologist, who had practiced for thirty-five
years, and who had experience with child sexual abuse
matters. The respondent contends that the petitioner
failed to ‘‘carry his burden to prove that [his trial counsel
had] performed deficiently by relying upon Dr. Luck, a
highly experienced gynecologist with a background in
examining children. In particular, the petitioner failed
to present any competent evidence that Dr. Luck lacked
the qualifications to render a reliable opinion in this
case.’’ We agree with the respondent.
The following additional facts are necessary. During
the petitioner’s criminal trial, the state had presented
the testimony of its expert, Kavle. Kavle had testified
that he had performed an examination of the victim, and
that he discovered a full thickness tear of the victim’s
hymen at the 2 o’clock position. Kavle explained that
this tear was consistent with child sexual abuse, but
that it did not mean, necessarily, that it was caused by
sexual abuse. Kavle also explained that he had used a
colposcope to perform the examination of the victim,
and that he had made a video recording of the colpos-
copic examination.3
During the habeas trial, the petitioner’s criminal trial
counsel, Jeffrey Beck, testified. Beck testified that he
had ‘‘a pretty good recollection’’ of this case. He stated
that in preparation for the petitioner’s criminal trial,
he had reviewed the victim’s forensic interviews, the
records from the Department of Children and Families,
and the victim’s psychiatric materials, including treat-
ment notes and therapy notes. Beck testified that his
theory of defense for this case was that the victim was
fabricating the allegations, especially in light of the vic-
tim’s admissions that she had made up some of the
statements and allegations she had relayed to her thera-
pist regarding the petitioner.
When Beck was asked if he had consulted with ‘‘a
medical expert to help [him] evaluate the medical find-
ings of child sexual abuse,’’ Beck stated that he had
consulted with Luck, a gynecologist with thirty-five
years experience, including some experience in child
sexual assault matters. Beck also stated that he had
provided Luck with Kavle’s report, that Luck had
reviewed Kavle’s report, and that Luck had confirmed
Kavle’s finding that ‘‘there was some blunt force trauma
to the vaginal area of the [victim].’’ Beck also repeated
his opinion that the best defense in this case was that
the victim had fabricated her allegations of sexual abuse
because the victim had admitted, even on the witness
stand, that she had made up some of her allegations.
The petitioner also provided testimony from Jennifer
Canter, a child abuse pediatrician. Canter explained
that she was board certified in a subspecialty called
‘‘child abuse pediatrics’’ by the American Board of Pedi-
atrics, which first began such board examinations for
specialization in this area in 2009. Canter testified that
she reviewed Luck’s report and the video of the colpos-
copic examination, and that she disagreed with Luck’s
opinion. In Canter’s opinion, the victim’s hymen
appeared ‘‘perfectly normal.’’ The petitioner did not call
Luck as a witness at his habeas trial.
The petitioner argues that Beck’s performance was
deficient because he failed to consult with and to pre-
sent the testimony of a medical professional with exper-
tise in investigating and evaluating child sexual abuse
allegations. He contends that this failure by counsel
made it impossible for counsel to challenge the testi-
mony of the state’s expert and his conclusions that
there was evidence of blunt force trauma to the victim’s
hymen. We are not persuaded.
‘‘[T]here is no per se rule that requires a trial attorney
to seek out an expert witness. . . . 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.’’ (Citation omitted;
internal quotation marks omitted.) Santos v. Commis-
sioner of Correction, 151 Conn. App. 776, 785, 96 A.3d
616 (2014).
‘‘A trial attorney is entitled to rely reasonably on the
opinion of an expert witness; see Doehrer v. Commis-
sioner of Correction, 68 Conn. App. 774, 783, 795 A.2d
548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002);
and is not required to continue searching for a different
expert [or for multiple experts]. See Santiago v. Com-
missioner of Correction, 90 Conn. App. 420, 426, 876
A.2d 1277 (counsel was entitled to rely on expert opin-
ion when determining that petitioner did not suffer from
mental defect, and was not required to seek an indeter-
minate number of expert opinions before concluding
that petitioner did not suffer from mental defect or
disease), cert. denied, 275 Conn. 930, 883 A.2d 1246(2005), cert. denied sub nom. Santiago v. Lantz, 547
U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006). [The
court] cannot conclude that [counsel’s] performance
was deficient when [counsel] consulted with an expert
witness regarding the victim’s physical examination,
yet reasonably concluded not to use the expert witness
at trial after determining that such testimony would not
benefit the petitioner’s defense.’’ Stephen S. v. Commis-
sioner of Correction, 134 Conn. App. 801, 816–17, 40
A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).
Here, Beck testified at the habeas trial that the peti-
tioner’s theory of defense was fabrication. He explained
that the defense was focused on the victim’s recanta-
tions and her admissions that she had made up some
of her allegations against the petitioner. The record
of the habeas trial reveals that in preparation for the
petitioner’s criminal trial, Beck, in fact, did consult an
expert, Luck, a gynecologist with thirty-five years expe-
rience, including experience with child sexual assault
cases. Beck testified at the habeas trial that, after
reviewing Kavle’s report, Luck confirmed Kavle’s find-
ings that the medical evidence demonstrated that there
was blunt force trauma to the victim’s hymen.
Thus, after having consulted with Luck, and after
having received Luck’s confirmation of Kavle’s finding,
Beck then made a reasonable strategic decision not to
present Luck’s testimony at trial or to seek another
opinion. Instead, he strategized that the best course of
action was for the defense to focus on the victim’s
inconsistent statements and her recantations, rather
than run the risk of bolstering the state’s case with
further damning evidence of injury to the victim’s
hymen.
The fact that the petitioner later was able to present
testimony at his habeas trial from Canter, a different
expert, perhaps more specialized than Luck, who dis-
agreed with the conclusions of both Kavle and Luck,
did not establish that counsel’s performance was defi-
cient for relying on Luck’s expert opinion in preparation
for the petitioner’s criminal trial. See Hinton v. Ala-
bama, U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed. 2d
1 (2014) (although concluding that counsel’s perfor-
mance was deficient for failing to understand the
resources available to the defense, United States
Supreme Court clarified that ‘‘the inadequate assistance
of counsel we find in this case does not consist of
the hiring of an expert who, though qualified, was not
qualified enough . . . [and specifying that] [w]e do not
today launch federal courts into examination of the
relative qualifications of experts hired and experts that
might have been hired’’ [citation omitted]).
Indeed, although the petitioner has argued that Can-
ter was a better or more specialized expert, the peti-
tioner has failed to demonstrate that Luck, a
gynecologist with experience in child sexual assault
cases, was not qualified to render an appropriate medi-
cal opinion concerning any gynecological injury to the
victim possibly caused by sexual assault.4
Accordingly, on the basis of the record before us, we
conclude that the petitioner has failed to demonstrate
that counsel’s performance at the petitioner’s criminal
trial was deficient. The petitioner simply has not shown
that Beck’s performance, wherein he consulted with
and relied on the expert opinion of a medical profes-
sional with experience in this field, was not reasonably
competent, or fell outside the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. Having so concluded, we need not
examine whether any alleged deficiency was prejudi-
cial. See Hilton v. Commissioner of Correction, 161
Conn. App. 58, 81, 127 A.3d 1011 (2015) (because both
prongs of Strickland must be demonstrated for peti-
tioner to prevail on ineffective assistance of counsel
claim, failure to prove either prong is fatal), cert. denied,
320 Conn. 921, 132 A.3d 1095 (2016).
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 victim testified at the petitioner’s criminal trial. Additionally, video-
tapes of her two forensic interviews were played for the jury and admitted
into evidence during the petitioner’s criminal trial.
2
Stedman’s Medical Dictionary (28th Ed. 2006), p. 413, defines a ‘‘colpo-
scope’’ as an ‘‘[e]ndoscopic instrument that magnifies cells of the vagina
and cervix in vivo to allow direct observation and study of these tissues.’’
3
A video of the colposcopic examination was played for the jury, and
Kavle explained his finding, in part, using the video.
4
The habeas court specifically found that there was no competent evi-
dence adduced at the habeas trial that Luck was underqualified to render
a medical opinion upon which counsel reasonably could rely. After reviewing
the record, we agree with this assessment.