Williams v. Comm'r of Corr.

177 Conn.App. 321

175 A.3d 565

Jeffrey WILLIAMS

v.COMMISSIONER OF CORRECTION

AC 39049

Appellate Court of Connecticut.

Argued May 30, 2017

Officially released October 17, 2017

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 attorney, for the appellee (respondent).

Sheldon, Mullins and Sullivan, Js.

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 medical expert with experience evaluating medical evidence in child sexual abuse cases, and (2) to present the testimony 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 [petitioner] had given her the hickey. The [petitioner] convinced 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, buttocks, thighs and undeveloped chest. On three or four occasions, the [petitioner] forced his penis into the victim'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 department social worker.

"Subsequently, the victim was interviewed by a forensic specialist, examined by a pediatric nurse practitioner [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 [petitioner], 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 administered ‘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., at 181, 926 A.2d 7.

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., at 170, 926 A.2d 7. The petitioner was sentenced to thirty-five years imprisonment. Id. This court upheld his conviction on direct appeal. Id., at 209, 926 A.2d 7.

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 subsequent 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 constitute 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 testimony. ... The application of the habeas court's factual 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 Correction , 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 reasonable probability that, but for counsel's unprofessional 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...