David N.J. v. Commissioner of Correction
156 A.3d 55
| Conn. App. Ct. | 2017Background
- Petitioner David N.J. was convicted by a jury of multiple counts of first‑degree sexual assault and risk of injury to a child for abusing his step‑granddaughter during 2003–2005; sentence was an effective 29 years with 10 years special parole.
- The victim disclosed the abuse after an incident on Christmas Eve 2005; she underwent a recorded diagnostic interview and a medical exam; portions of the interview were used at trial.
- Trial counsel (Meredith and Delbarba) defended on the theory the victim fabricated the allegations, often in concert with her brother VJ, who testified at trial that he had observed one incident.
- Petitioner filed a habeas petition claiming trial counsel were ineffective for failing to (a) adequately impeach the victim on inconsistencies between her diagnostic interview and trial testimony, (b) cross‑examine the interviewer Murphy‑Cipolla or introduce the interview video, (c) present evidence that the victim falsely implicated petitioner in abuse of another child (T), and (d) effectively impeach VJ.
- The habeas court credited counsel’s testimony that many decisions were strategic (avoid re‑presenting the child’s video interview; avoid calling a potentially harmful witness T; limit cross‑examination of a child) and found no deficient performance or prejudice. The Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Failure to impeach victim as to inconsistencies between diagnostic interview and trial testimony | Counsel should have impeached the victim on timing/details and a statement implicating petitioner in abuse of another child; credibility was central | Counsel thoroughly cross‑examined key inconsistencies, used strategic restraint when questioning a child to avoid harm | Counsel’s cross‑examination was reasonable strategy and not deficient; no prejudice shown |
| 2. Failure to cross‑examine Murphy‑Cipolla or introduce diagnostic interview video | Counsel should have impeached interviewer and used portions of the interview favorable to defense | Introducing the audiovisual interview risked reinforcing the victim’s account and granting the state redirect; interviewer’s testimony was largely a ‘‘regurgitation’’ of child’s account | Decision not to cross‑examine/introduce interview was a reasonable tactical choice; no prejudice |
| 3. Failure to call witness T or otherwise show victim falsely accused petitioner of abusing T | Trial counsel could have shown the victim previously accused petitioner of abusing T to impeach her credibility | Counsel tried to contact T but could not; calling T without knowing her likely testimony was a ‘‘wildcard’’ and could harm defense | Not calling T was reasonable strategy; petitioner failed to show the allegation was demonstrably false or that counsel’s choice was unreasonable |
| 4. Failure to adequately impeach VJ (prior inconsistent statement to investigator) | VJ previously told an investigator he was unaware of abuse, contradicting his trial testimony that he witnessed abuse | Counsel cross‑examined VJ, revealed inaccuracies and bias; inconsistencies could reflect different descriptions or separate incidents; further impeachment risked repeating abuse narrative | Cross‑examination was adequate and strategic; no deficient performance or prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
- Toccaline v. Commissioner of Correction, 80 Conn. App. 792 (Conn. App. 2004) (standard of review and Strickland discussion in Connecticut habeas context)
- Velasco v. Commissioner of Correction, 119 Conn. App. 164 (Conn. App. 2010) (deference to counsel’s tactical cross‑examination decisions)
- Roger B. v. Commissioner of Correction, 157 Conn. App. 265 (Conn. App. 2015) (decision not to introduce child interview videotape can be strategic)
- Spearman v. Commissioner of Correction, 164 Conn. App. 530 (Conn. App. 2016) (failure to call or investigate witnesses reviewed deferentially when grounded in strategy)