186 Conn. App. 754
Conn. App. Ct.2018Background
- Petitioner Edward M. was convicted of multiple counts of first‑degree sexual assault and risk of injury to a child based on testimony from his daughter (J) and her mother; there was no physical evidence of abuse.
- At trial, J and her mother testified the petitioner was uncircumcised; the petitioner and his then‑girlfriend A testified he was circumcised. Trial counsel O’Brien did not introduce medical records, photographs, or an independent examination to corroborate circumcision.
- During deliberations the jury asked why there was no medical evidence of circumcision; the jury nonetheless convicted and the petitioner was sentenced to an effective 50‑year term.
- Petitioner filed a first habeas petition; appointed habeas counsel Duby did not raise ineffective‑assistance‑of‑trial‑counsel based on failure to present circumcision evidence. That habeas petition was denied.
- Petitioner filed a second habeas (Lozada/habeas‑on‑a‑habeas) alleging Duby was ineffective for failing to raise O’Brien’s omission; the habeas court granted relief, finding both trial and prior habeas counsel deficient and that the omission was prejudicial.
- The Commissioner appealed, arguing (inter alia) that post‑assault medical/photographic evidence was irrelevant, O’Brien’s omission was strategic, and any prejudice was speculative. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was trial counsel unreasonable for failing to introduce independent evidence (medical records/photos/exam) showing petitioner was circumcised? | O’Brien was ineffective because independent evidence would have made petitioner’s circumcision more probable and tested the key credibility dispute. | O’Brien’s choice to rely on testimonial evidence was a tactical decision; post‑assault evidence (2008) was irrelevant to 2004–2006 status. | Held: O’Brien’s performance was deficient. Contemporary medical/photographic evidence is minimally relevant and should have been offered; omission was not strategic but a clear mistake. |
| Was prior habeas counsel (Duby) ineffective for not raising the above trial‑counsel claim? | Duby failed to pursue a meritorious claim that was raised pro se and indicated by trial counsel; this deprived petitioner of relief in the first habeas. | Duby’s choice was reasonable or the claim lacked merit; omission was not prejudicial. | Held: Duby rendered ineffective assistance by failing to investigate/raise trial‑counsel’s omission; prejudice established. |
| Are post‑assault medical records/photographs admissible/relevant to whether petitioner was circumcised during the alleged assaults? | Such contemporary evidence need only slightly increase the probability the petitioner was circumcised at the time of the assaults and is thus relevant and for the jury to weigh. | Such evidence only shows circumcision in 2008, years after the alleged crimes, and is therefore irrelevant. | Held: Evidence relevance standard is low; contemporaneous photos/records are relevant because they tend to make the disputed fact more probable and are for the jury to weigh. |
| Was prejudice speculative or was there a reasonable probability of a different outcome if evidence had been introduced? | Prejudice established: circumcision was a central credibility issue; jury note shows concern; reasonable probability of different result. | Any effect on outcome is speculative. | Held: Prejudice established. Jury note requesting medical evidence supports a reasonable probability of a different outcome; thus prejudice was not speculative. |
Key Cases Cited
- Lozada v. Warden, 223 Conn. 834 (Lozada establishes the habeas‑on‑a‑habeas framework and requirement to show both habeas and trial counsel ineffective)
- Strickland v. Washington, 466 U.S. 668 (establishes two‑pronged test for ineffective assistance of counsel)
- State v. Marra, 222 Conn. 506 (explains low threshold for relevance of evidence)
- State v. Cerreta, 260 Conn. 251 (reiterates that evidence need not exonerate defendant to be relevant)
- State v. Miguel C., 305 Conn. 562 (jury note can demonstrate what issues influenced deliberations and supports prejudice analysis)