NORCOTT, J.
In this certified appeal,
The record reveals the following relevant facts and procedural history. The petitioner was represented at trial by Attorneys Jeffrey Hutcoe and John Cizik.
"The [petitioner] punished the victim. The [petitioner] struck her face with his hand when he was angry because she had not done her homework correctly. She did not tell her mother about this because she was afraid of what the [petitioner] might do. On one occasion, the [petitioner] hit her so hard her nose bled. The [petitioner] also compelled her to hold a book bag filled with tapes and clothes on a stick over her head for long periods of time. On another occasion, he made her kneel on grains of rice. Although the victim did not tell her mother about these events, she confided in her best friend. The friend's mother testified that she noticed behavioral changes in the victim beginning in 1998. The victim, who had been carefree, had become quiet and withdrawn. The victim's grades suffered, and she exhibited a poor attitude at school. After school one day, the victim was terrified to go home on the school bus. Her teacher and school principal conferred with her mother. The victim, however, had not told anyone other than her friend that she was afraid of the [petitioner].
"The victim also testified that the [petitioner] made her rub his back or his feet while he was wearing only his underwear. In addition, he called her into the bedroom and asked her to rub his private parts. One night she woke up and the [petitioner] was attempting to put his penis in her mouth. She reported this to her mother who told her that she must have been dreaming. The victim testified that the [petitioner] had sexual intercourse with her by putting `his private into [her] butt.' When she was nine and in the fourth grade, the [petitioner] had intercourse with her almost `every other night or twice a week.' The [petitioner] forced the victim to have oral, anal and vaginal intercourse with him.
"The victim did not tell her mother about the incidents of sexual abuse until shortly after a fire occurred in their home, the day after Thanksgiving, 2000. The victim was spending time with her grandmother who overheard her talking to herself. The grandmother insisted that the victim tell her what she was talking about. The victim told her grandmother of the [petitioner's] sexual abuse. The grandmother informed the mother and immediately took the victim to the police station. The victim gave a statement to the police in which she related the [petitioner's] sexual abuse. The police advised the victim's mother to take her to a hospital that specialized in assessing children who are victims of sexual abuse. The mother followed the advice of the police. The victim was examined by Judith Kanz, a certified pediatric nurse practitioner, who specializes in child forensic medical examinations." (Footnote omitted.) Id., at 856-58, 864 A.2d 35.
During direct examination, Kanz testified that she had conducted an examination of the victim's vaginal and anal areas in December, 2000. According to Kanz, the examination of the victim's vaginal area indicated signs of repetitive contact and the findings from her examination were consistent with the victim's claims. With respect to the anal examination, Kanz testified that the exam was "generally within normal limits." On cross-examination, Kanz testified that when she examines children who have made allegations of sexual abuse, she determines whether the children have injuries that require medical attention. Kanz indicated that she would provide any follow-up medical treatment if necessary and specified that sexually transmitted diseases require such treatment. When asked by defense counsel
"The [petitioner] testified that the victim did not like him because she felt that he was replacing her father and because he planned to marry her mother. He admitted that he disciplined the victim for not doing her homework or her chores. As punishment, he took away the victim's privileges or gave her `time outs.' He also testified that he made the victim hold a stick on which an empty book bag was suspended for five minutes. The [petitioner] denied that he had sexually assaulted the victim." State v. Anderson, supra, 86 Conn.App. at 858, 864 A.2d 35. Thereafter, the jury returned a verdict of guilty as to one count each of sexual assault in the first degree and risk of injury to a child. Id., at 856, 864 A.2d 35; see also State v. Anderson, 119 Conn.App. 98, 104-105, 985 A.2d 1096 (2010) (vacating petitioner's sentence on risk of injury charge and remanding case for resentencing).
With respect to the habeas trial, the record reveals the following relevant facts, which the habeas court reasonably could have found. During the criminal trial, the petitioner initially was represented by Hutcoe and subsequently was represented by Cizik. The petitioner testified that he had told both Hutcoe and Cizik that he "had various venereal diseases" and that he did not assault the victim. Hutcoe testified that he recalled the petitioner telling him that he had sexually transmitted diseases and that he remembered asking the petitioner, who had been released on bond, to bring "some kind of proof" from his physician. According to Hutcoe, the petitioner never provided any medical records. Cizik testified that he recalled meeting with the petitioner prior to the criminal trial, but that he did not recall the petitioner telling him that he had a history of sexually transmitted diseases. With respect to discovery, both Cizik and Hutcoe testified that the state had an open file policy and that Kanz' report following her examination of the victim was in that file.
Attorney Richard Meehan, who testified during the habeas trial as an expert witness for the petitioner, opined that reviewing the state's file and obtaining copies of relevant documents from that file was not sufficient to satisfy counsel's discovery obligations in this type of case. In Meehan's opinion, counsel in such a case is obligated to investigate whether the victim or the accused had a sexually transmitted disease during the relevant time frame and that, if the accused had a sexually transmitted disease while the victim did not, counsel would also be obligated to introduce testimony from a medical expert indicating that the accused could not have been the individual who assaulted the victim.
During the habeas trial, the petitioner also presented the testimony of Timothy Grady, a registered nurse, as an expert witness with respect to sexually transmitted diseases. Grady testified on direct examination that he had treated numerous people infected with sexually transmitted diseases during his approximately twenty year career as a nurse. According to Grady, patients who visit the emergency room for treatment of sexually transmitted diseases often do not wait for culture results. As a result, patients may be treated "prophylactically or empirically ... for whatever was presumed to be the problem." Grady testified that his review of the petitioner's medical records indicated that the petitioner had presented to the emergency room with complaints of sexually transmitted diseases on multiple occasions throughout 1997, 1998 and 1999, and that the petitioner had been "treated empirically" for gonorrhea and chlamydia on those occasions. Grady clarified that because
Specifically, Grady testified that when the petitioner visited the emergency room in November, 1997, complaining that he had urethral discharge and painful urination, the petitioner "tested positive for chlamydia" and negative for gonorrhea. In January, 1998, when the petitioner returned to the emergency room complaining of the same symptoms, he was diagnosed with a nonspecific sexually transmitted disease, but the record does not contain any evidence concerning testing or test results. Several months later, in April, 1998, the petitioner was treated for venereal warts, and in June, 1998, the petitioner was diagnosed with a nonspecific sexually transmitted disease after he visited the emergency room complaining of painful urination and a whitish urethral discharge. In October, 1998, when the petitioner again presented to the emergency room with similar symptoms, a culture for chlamydia was negative, but a culture was positive for the presence of the bacteria Haemophilus parainfluenzae, which is not a sexually transmitted disease. Finally, in January, 1999, and October, 1999, the petitioner returned to the emergency room with complaints of urethral discharge and burning urination. Although the petitioner indicated that "it felt like when he had gonorrhea previously," there was "no confirmation of gonorrhea in the [petitioner's medical] records...."
Grady testified that a colorful or whitish discharge and painful urination can be symptoms of sexually transmitted diseases, but he also indicated that some individuals who have sexually transmitted diseases are asymptomatic. During the habeas trial, the petitioner's counsel presented Grady with the following hypothetical: "A man and a woman have a three year sexual relationship during periods involving November of 1997 and ... the male is infected with chlamydia during that time.... Can you state to any ... reasonable degree of medical certainty whether or not the female in that hypothetical would have been infected with chlamydia?" In response, the following colloquy between Grady and the petitioner's counsel ensued:
"[Grady]: Well, that would necessarily depend on whether or not the man was infected at the time of the intercourse.
"[The Petitioner's Counsel]: So ... in November of 1997, I don't think there's a dispute that [the petitioner] was infected with chlamydia at the time. Is that your reading of the record?
"[Grady]: No. He had a definite positive culture at that time. The other times he was treated, he was being treated for [a sexually transmitted disease]. They just — the doctor, when he wrote the note, didn't have the confirmation of the culture, but he was diagnosed with [a sexually transmitted disease] at each and every one of those times.
"[The Petitioner's Counsel]: Does the rate or the ease with which [sexually transmitted diseases] are communicated to or given to a child under ten, does that increase at all because of the child's age?
"[Grady]: Well, yeah. I mean, in general, if a woman is having sex with a man who is infected with chlamydia, [her] chance of acquiring it is 40 percent for each sexual contact. For gonorrhea, its 50 percent for each sexual contact."
Stephen Scholand, a physician specializing in infectious diseases, testified as an expert witness for the respondent, the Commissioner of Correction. Scholand reviewed the petitioner's medical records and found that he suffered from chlamydia
During cross-examination, Scholand testified that in males, the typical symptoms of chlamydia are urinary discomfort and discharge, whereas in females, symptoms are not present or noticed in up to 75 percent of patients, and symptoms can range from vague abdominal pain to pelvic inflammatory disease. Many women "never find out they're infected with chlamydia until there's consequences later on...." With respect to a patient under the age of twelve, Scholand testified, "I would not expect her to exhibit symptoms of chlamydia." According to Scholand, if such a patient did have symptoms, they could include painful urination and a serous, or thin discharge.
After cross-examination, in response to questioning by the court, Scholand testified that chlamydia is an intracellular bacterium that can be eliminated from the body through either natural defense processes or antibiotics. Scholand explained that, "[i]f you treat someone with antibiotics, they can be considered cured," and that after treatment with antibiotics, the disease is not transmittable. According to Scholand, the antibiotics that are prescribed to treat chlamydia are usually taken for approximately one week, and the protocol is for "patients not to engage in sexual activity for about a week [after a course of treatment with antibiotics]...." Scholand further testified, during recross-examination, that chlamydia and other infections also can be eradicated by the immune system without the use of antibiotics.
The petitioner testified at the habeas trial that he had no knowledge of the victim having suffered from any type of sexually transmitted disease. The petitioner stated, "as far as I'm concerned, she never — she never contracted anything." The petitioner did not introduce any other evidence at the habeas trial concerning whether the victim suffered or did not suffer from any sexually transmitted diseases during the relevant time frame.
After the close of evidence, the habeas court asked the petitioner's counsel: "What is the earliest date ... of which there's an allegation that an act of sexual abuse took place? Understand ... I'm not asking you to admit anything. I'm asking the earliest date upon which an allegation of...." The petitioner's counsel answered: "I believe it was January 1, 1998, and ... I believe the information reflected at various dates between ... [the] beginning of January, 1998 and [January] 2000."
The habeas court then issued an oral memorandum of decision, which provides in relevant part: "The issue [in the present case] is whether the petitioner suffered from a sexually transmitted disease, which, in his assertion, should have been communicated to the victim had the events
"The testimony by ... 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 [one] week to eliminate the active chlamydia infection. There is no further evidence of any chlamydia infection from which the petitioner suffered.... 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 [would not have] serve[d] as an exculpatory piece of evidence....
"[W]hen I look at the evidence that has been presented here, I have the testimony of the petitioner, who testifie[d] 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 16, 1997.
"Now, what I don't have is ... 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 [were] infectious, there is still a 70 percent chance that the partner, in this case unwilling, would not be infected....
"In this case, it's difficult to find that there's been deficient performance [by counsel]. To be sure, the petitioner did inform [counsel] that he had had sexually transmitted diseases; however, the petitioner did not ever produce any sort of medical record to support that [as had been requested by counsel].... But even if the court makes the assumption that it was deficient performance not to investigate the [sexually transmitted disease] 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 ... petitioner.... [B]ased on the evidence presented, I cannot find that the performance by [counsel] is in violation of the standard set forth in Strickland v. Washington [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]." The habeas court then denied the petitioner's request for certification to appeal, from which the petitioner appealed to the Appellate Court.
Before the Appellate Court, the petitioner claimed that counsel had provided ineffective assistance during his criminal trial by failing to introduce exculpatory evidence concerning his history of having sexually transmitted diseases, to retain a medical expert concerning sexually transmitted diseases or to "`investigate, perform
In the present appeal, the petitioner seeks reversal of the Appellate Court's judgment on the ground that there is a reasonable probability that the outcome of his criminal trial would have been different had counsel introduced exculpatory evidence related to the petitioner's history of sexually transmitted diseases.
We begin our analysis "with the applicable standard of review and the law governing ineffective assistance of counsel claims. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... Bryant v. Commissioner of Correction, 290 Conn. 502, 509, 964 A.2d 1186, cert. denied sub nom. Bryant v. Murphy, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009). Historical facts constitute a recital of external events and the credibility of their narrators.... Small v. Commissioner of Correction, 286 Conn. 707, 716, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). 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.... Id., at 717, 946 A.2d 1203. 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.... Bryant v. Commissioner of Correction, supra, at 510, 964 A.2d 1186.
"Furthermore, it is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [supra, 466 U.S. at 686, 104 S.Ct. 2052]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... As enunciated in Strickland v. Washington, supra [at], 687 [104 S.Ct. 2052], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation 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 demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677-78, 51 A.3d 948 (2012). In addition, in order to demonstrate that counsel's deficient performance prejudiced his defense, "the petitioner must establish that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
Moreover, "[i]n making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury.... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.... The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. at 688-89, 51 A.3d 948.
In the present case, the petitioner contends that the introduction of evidence that he had suffered from sexually transmitted diseases, coupled with the state's failure to introduce evidence that the victim suffered from sexually transmitted diseases, would have given rise to reasonable doubt as to his guilt. In so stating, however, the petitioner oversimplifies the nature of our inquiry on appeal, which does not begin and end with a consideration of the effect of particular evidence in isolation. Rather, in assessing whether there is a substantial likelihood that the addition of such evidence would have resulted in a different outcome, we must consider the cumulative effect of all of the evidence. See Wong v. Belmontes, 558 U.S. 15, 26, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) ("reviewing court must consider all the evidence — the good and the bad — when evaluating prejudice").
Expert testimony at the petitioner's habeas trial established that the petitioner had tested positive for chlamydia in November, 1997. At the same time, testing confirmed that the petitioner did not have gonorrhea. As the habeas court found, however, by the time the alleged abuse of the victim began in January, 1998, the petitioner had been treated with antibiotics and would have been "clear of the chlamydia infection." Furthermore, although Grady's testimony established that the petitioner had visited the emergency room on numerous occasions in 1998 and 1999, and was treated for nonspecific sexually transmitted diseases on those occasions, Grady's testimony also established that there were no culture results to confirm that the petitioner actually was suffering from a sexually transmitted disease during the relevant time frame. In fact, the only test results in the record after January, 1998, which were obtained in October, 1998, indicated that the petitioner
The petitioner argues, however, that, "[n]otwithstanding the lack of culture results... there is, at the very least, a reasonable probability that evidence of [the petitioner's] diagnoses and treatments for [sexually transmitted diseases] would have raised in the jury's mind a reasonable doubt as to his guilt." Even if we assume that the petitioner was suffering from nonspecific sexually transmitted diseases during the relevant time frame, however, Scholand's testimony established that there was only a 30 percent chance
After reviewing the evidence in its entirety and considering its cumulative effect, we cannot conclude that the petitioner has met his burden of proving that there is a reasonable probability that, but for counsel's failure to introduce evidence related to the petitioner's history of sexually transmitted diseases, the jury would have rendered a different verdict. See Wong v. Belmontes, supra, 558 U.S. at 20, 130 S.Ct. 383. Likewise, we cannot conclude that counsel's alleged errors deprived the petitioner of a fair trial. Not only were the victim's allegations of sexual abuse bolstered by constancy of accusation testimony and testimony that the victim had exhibited behavioral changes during the time frame when the alleged abuse occurred, but Kanz also testified that the results of the victim's physical examination were consistent with "repetitive penetration and the history that [the victim] gave of repetitive penetration." Moreover, defense counsel's closing argument during the criminal trial focused the jury's attention on the weaknesses in the state's case, namely, the victim's dislike for the petitioner, the fact that the victim's mother initially treated her allegations of abuse as being a dream, and inconsistencies between the victim's testimony and Kanz' report. In particular, counsel emphasized that the victim had testified about the petitioner putting "his private [into her] butt," whereas Kanz' testimony indicated that the findings from her examination of the victim's vaginal area, rather than the victim's anal area, were consistent with repetitive penetration.
Furthermore, we disagree with the petitioner's contention during oral argument before this court that the habeas court improperly narrowed its focus to the issue of whether the petitioner was suffering from chlamydia during the relevant time frame and the likelihood of whether the victim would have contracted chlamydia from the petitioner. The record indicates that when the petitioner asked Grady, hypothetically, to state the likelihood of whether the victim would have contracted chlamydia and gonorrhea from the petitioner, the respondent objected on the ground that the only positive culture result in the record was for chlamydia. The petitioner's counsel noted, summarily, that the petitioner had been treated for sexually transmitted diseases, but then, before the habeas court had issued a ruling, agreed to narrow the hypothetical question to the likelihood of whether the victim would have contracted chlamydia. Subsequently, the majority of the petitioner's cross-examination of Scholand and the habeas court's questioning of Scholand centered on facts concerning chlamydia. The petitioner does not point to any instance in the record indicating that he believed that the proceedings were unduly focused on issues concerning chlamydia. Likewise, there is no indication that the petitioner filed a motion claiming that the habeas court's memorandum of decision was incomplete, incorrect or inaccurate. See, e.g., Bauer v. Bauer, 308 Conn. 124, 137, 60 A.3d 950 (2013) (when defendant chose not to challenge factual finding when judgment was rendered, he was precluded from challenging finding for first time on appeal). The petitioner, having acquiesced to the narrowing of questioning during the habeas trial and having failed to challenge the habeas court's memorandum of decision, cannot make these challenges for the first time on appeal.
Finally, we also reject the petitioner's argument that case law from other jurisdictions supports the reversal of his conviction. Specifically, the petitioner cites two cases for the proposition that, the "failure to introduce evidence of a difference in [sexually transmitted disease] status between a defendant and a complainant in a sexual assault case warrants reversal of convictions, without requiring
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C.J., and ZARELLA, EVELEIGH, McDONALD and VERTEFEUILLE, Js., concurred.
PALMER, J., dissenting.
I disagree with the majority that the petitioner, Oscar Anderson, was not prejudiced by the failure of his trial counsel, Jeffrey Hutcoe and John Cizik, to introduce at trial medical records concerning the petitioner's history of sexually transmitted diseases, to present expert testimony concerning the transmission rates of such diseases, and to demonstrate that the victim apparently had not contracted any such diseases during the nearly three year period in which she claims the petitioner engaged in vaginal, anal and oral sex with her two or three times per week. Rather, I agree with Judge Borden, who dissented from the opinion of the majority in the Appellate Court, that the failure of counsel to present such evidence rendered their performance manifestly deficient under prevailing norms of practice and caused material harm to the petitioner. See Anderson v. Commissioner of Correction, 128 Conn.App. 585, 609-13, 17 A.3d 1138 (2011) (Borden, J., dissenting). I therefore respectfully dissent.
As the majority explains, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
In the present case, the majority does not address Strickland's performance prong in light of its determination that, even if the petitioner's trial counsel had rendered ineffective assistance, the petitioner cannot establish that he was prejudiced by their deficient performance. Because I would reverse the judgment of the Appellate Court, I must address the merits of both Strickland prongs.
With respect to the first prong, although the Appellate Court relied on the absence of prejudice in affirming the habeas court's judgment; see Anderson v. Commissioner of Correction, supra, 128 Conn.App. at 586, 591, 17 A.3d 1138; it nevertheless observed that "the evidence quite strongly suggests that counsel should have investigated the petitioner's claims that he had suffered from sexually transmitted diseases throughout the period that ... [he allegedly] had been sexually assaulting the victim and that [the] failure [of counsel] to do so likely constituted ineffective assistance." Id., at 590-91, 17 A.3d 1138. This observation, in my view, is an understatement. Suffice it to say that I agree with Judge Borden that whether the petitioner received effective assistance of counsel "is not even a close call." Id., at 609, 17 A.3d 1138 (Borden, J., dissenting). Quite clearly, he did not. The undisputed evidence adduced in the habeas court established that the petitioner had timely informed his trial counsel that he had been treated for sexually transmitted diseases at a Waterbury hospital on numerous occasions during the relevant time frame and that, as far as he knew, the victim never had been treated for any such diseases. Indeed, the petitioner repeatedly made the point to trial counsel that, in the absence of any evidence that the victim had received such treatment, the petitioner's medical history would support his claim of innocence. Id., at 604, 17 A.3d 1138 (Borden, J., dissenting). Notwithstanding this information, "[a]t no time during [the] course of [representing] the petitioner did [the petitioner's counsel] take a single step toward even attempting to corroborate with readily available documentation [the petitioner's] statements to them that he had a history of sexually transmitted diseases ... [that] would tend to undermine the victim's allegations of repeated sexual intercourse between the two, and thereby at the least lay
The majority concludes, however, that the petitioner was not prejudiced by the inadequate performance of his trial counsel and, therefore, was not deprived of a fair trial because there was no reasonable probability of a different outcome even if the jury had been presented with the petitioner's medical records, which, as the majority acknowledges, reveal that the petitioner was treated for sexually transmitted diseases, including gonorrhea and chlamydia, on numerous occasions between November, 1997, and October, 1999, the period in which the victim claims that the petitioner sexually assaulted her two or three times per week. The majority reaches this conclusion because the petitioner's medical records also reveal that, although he was treated for sexually transmitted diseases on numerous occasions, there were no culture results confirming the diagnosis, and, consequently, the jury reasonably could have concluded that the petitioner was not actually suffering from any such disease on those occasions. The majority further posits that, even if the petitioner was infected with a sexually transmitted disease or diseases on each of the occasions that he visited the hospital, the respondent's expert, Stephen Scholand, a physician specializing in infectious diseases, testified that there was only a 30 percent chance that a person would contract chlamydia upon having intercourse with an infected person.
The majority's reasoning is unpersuasive for several reasons. First, it does not require an advanced degree in statistics or mathematics to know that the more times a person engages in sexual intercourse with someone infected with a sexually transmitted disease, the more likely it is that the person will contract that disease. On the contrary, common sense tells us that a 30 percent risk of infection for any act of sexual intercourse means that, over an extended period of time, an infected person who repeatedly has intercourse with another person will transmit the disease to that other person at a rate of three out of every ten acts of intercourse. Furthermore, as Judge Borden explained, in addition to the petitioner's and the victim's medical records, the jury also had before it the testimony of Timothy Grady, a registered nurse with approximately twenty years of experience in treating sexually transmitted diseases. See Anderson v. Commissioner of Correction, supra, 128 Conn.App. at 605, 616-17, 17 A.3d 1138 (Borden, J., dissenting). In contrast to Scholand's testimony, Grady explained that chlamydia has "a transmission rate of 40 to 50 percent for each sexual contact between an infected male and a woman, and an even higher rate for a female of the age of the victim.
I also am not persuaded by the majority's assertion that, because there were no culture results confirming a diagnosis of chlamydia or gonorrhea, a jury could have concluded that the petitioner never actually suffered from those diseases during the relevant time frame. As the majority itself observes, there was undisputed evidence at trial that "patients who visit the emergency room for treatment of sexually transmitted diseases often do not wait for culture results," and, therefore, they often are "treated `prophylactically or empirically'" based on the symptoms with which they present. In the present case, according to medical experts presented by both the respondent and the petitioner, the petitioner presented with textbook signs of chlamydia and gonorrhea
I also am not convinced by the majority's assertion that the jury reasonably could have concluded, on the basis of Scholand's testimony, that the victim's immune system likely would have eradicated any sexually transmitted diseases by the time she was tested for them, a fact that could explain the negative test results. I note in this regard that, although Scholand testified that a person's immune system is capable of eradicating a sexually transmitted disease, he was unable to provide an answer when asked how often this actually occurs and ultimately conceded that he really had no idea how often it occurs. Scholand did state, however, that it could take months or even years for the body to rid itself of chlamydia. Indeed, both experts testified that chlamydia is often asymptomatic and can stay in the body indefinitely if left untreated, causing myriad complications. I believe that the foregoing expert testimony, the petitioner's documented history of sexually transmitted diseases, the relatively high transmission rates of such diseases, and the fact that the victim tested negative for such diseases might very well have created a reasonable doubt as to the petitioner's guilt.
I recognize that this is a close case. It is, however, precisely because it is a close
We disagree with Judge Borden's conclusion in his dissent that the only reasonable construction of the record demanded the inference that the victim did not contract any sexually transmitted disease. Anderson v. Commissioner of Correction, supra, 128 Conn. App. at 619, 17 A.3d 1138. Rather, we conclude that the only reasonable construction of the record demanded the inference that the victim did not have any sexually transmitted diseases when she was examined by Kanz. The evidence at the habeas trial clearly established that the victim could have contracted a sexually transmitted disease from the petitioner during 1998 or 1999 without even knowing it and could have overcome the disease without antibiotic treatment prior to her examination by Kanz in December, 2000.
Likewise, the petitioner's reliance on Steele is misplaced because the issue in that direct appeal was whether the defendant was entitled to a new trial on the ground that the state had violated the defendant's right to a fair trial by withholding exculpatory evidence. State v. Steele, supra, 510 N.W.2d at 666. In Steele, the state withheld evidence that the victim had claimed to have contracted chlamydia from the defendant and the defendant did not learn of this claim until after his conviction. Id., at 665-66. Testing confirmed that neither the defendant nor his wife was infected. Id., at 666. Not only was Steele decided in a different procedural context, but unlike the present case, the testing results in that case were confirmed, and the state's case rested entirely on the victim's uncorroborated testimony that the sexual contact was not consensual. Id.
