2009 Ct. Sup. 12471
No. CV05-4000500Connecticut Superior Court Judicial District of Tolland at Rockville
July 20, 2009
STANLEY T. FUGER, JR, SUPERIOR COURT JUDGE.
THE COURT: This will constitute the decision of the Court. Now, I’ve listened very carefully to the evidence that’s been presented to me today, and it is clear that this case revolves around the issue of whether evidence was properly presented to the jury.
The issue is whether the petitioner suffered from a sexually transmitted disease which, in his assertion, should have been communicated to the victim had the events taken place. The petitioner asserts that the fact that he was prevented from showing that the victim was not suffering from any sexually transmitted diseases undermined the defense that was produced at trial.
So this case really does revolve around the issue of Chlamydia. Now, it is clear from the evidence that was produced that the petitioner on November 16th of 1997 did, in fact, test positive for the presence of the Chlamydia bacteria. Those same records establish that in November of 1997, the petitioner was treated for this Chlamydia infection.
The testimony by Dr. Scholand is that Chlamydia can be eliminated from the body if treated with antibiotics. The medical records support that there was an antibiotic treatment, and it would take approximately a week to eliminate the active Chlamydia infection. There is no further evidence of any Chlamydia infection from which the petitioner suffered.
Now, January 1998 is the earliest date of sexual contact. By January of 1998, the petitioner would have been clear of the Chlamydia infection. So the absence of any Chlamydia infection in the victim does not serve as an exculpatory piece of evidence.
A writ of habeas corpus — it’s often called a court of last resort. And there are several key things to remember when dealing with a writ of habeas corpus. First and foremost, the petitioner does not sit here as an innocent man. The petitioner has been convicted by a jury, following a trial. He is no longer a defendant entitled to the presumption of innocence. He is a convict whose guilt has been established beyond a CT Page 12472 reasonable doubt.
Consequently, the burden of proving that there’s been a miscarriage of justice rests with the petitioner. Unlike the defendant in a criminal trial who has the presumption of innocence with the burden being entirely upon the prosecution to overcome that presumption of innocence, the petitioner in habeas corpus trial doesn’t have that advantage. Consequently, it’s not enough to simply suggest matters that might have been done differently that might have resulted in a different result.
Now, when I look at the evidence that has been presented here, I have the testimony of the petitioner, who testifies that he suffered from various sexually transmitted diseases. I have the medical records to support that. I have no reason to disbelieve that the petitioner did, in fact, suffer from various sexually transmitted diseases. The evidence and the petitioner’s testimony is not inconsistent in establishing that the latest date upon which a Chlamydia infection existed was November 16th of 1997.
Now, what I don’t have is I don’t have any evidence as to whether the victim in this case did or did not suffer from a Chlamydia infection. So I can’t make a conclusive finding as to whether she, in fact, did suffer from such infection.
But if I take the premise that the petitioner is putting forward, that he, in fact, was positive for Chlamydia in November of 1997, and even if we assume that the evidence would have shown that the victim was negative, that still doesn’t go to be exonerating.
First of all, based upon the testimony that I’ve received here today, it is highly likely that in January of 1998 when the sexual abuse began, the petitioner was not infectious. Even if he was infectious, there is still a seventy-percent chance that the partner — in this case unwilling — would not be infected.
So the — under the best case scenario, the evidence of lack of Chlamydia infection on the part of the victim is not what could colloquially be called a smoking gun. It’s not a blockbuster type of evidence that when presented to the Court clearly makes the Court say there’s been a miscarriage of justice.
In the final analysis, though, the standard by which a Court judges whether a habeas should be granted or not is whether it undermines the confidence in the conviction. I haven’t heard anything today that would allow me to reach the conclusion that the conviction is anything other CT Page 12473 than reliable.
To direct to — direct comments to the Strickland v Washington
standard, it’s longstanding law that in order to have a habeas corpus petition granted, a petitioner must demonstrate that his counsel was ineffective, and that requires showing that there was deficient performance on the part of the counsel and that there was some prejudice that inured to the petitioner as a result.
In this case, it’s difficult to find that there’s been deficient performance. To be sure, the petitioner did inform Attorney Hutcoe that he had had sexually transmitted diseases; however, the petitioner did not ever produce any sort of medical record to support that.
I haven’t received into evidence any of the voluminous notes that are alleged to have been prepared by Mr. Hutcoe, so I cannot make any finding of fact as to whether Mr. Hutcoe had noted that in his notes that were passed on to Attorney Cizik for the representation of the defendant in the criminal trial.
But even if the Court makes the assumption that it was deficient performance not to investigate the STD issue, it is, however, crystal clear that on the basis of the testimony I’ve heard today, there’s been no prejudice that could have occurred. Had it been investigated and even assuming that the victim was negative for Chlamydia, the testimony that I heard today is clear that that does not in any way exonerate the defendant — the petitioner, so I can’t conclude that there’s been any prejudice.
And in order to prove ineffective assistance of counsel, the petitioner must demonstrate both deficient performance and prejudice, and the Court is free to decide denying a petition if either one of those two prongs is missing.
And clearly, in this case, the prejudice prong is missing, which is not to say, however, that Attorney Cizik and Hutcoe gave a perfect performance. But it must be remembered that the constitution doesn’t require perfection. The constitution requires constitutionally adequate performance.
And Attorney Meehan’s opinion to the contrary, I cannot find that the — based on the evidence presented, I cannot find that the performance by either attorney is in violation of the standard set forth in Strickland v Washington. As a result, the petition will be denied.
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