Ricardo R. v. Commissioner of Correction , 185 Conn. App. 787 ( 2018 )


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    RICARDO R. v. COMMISSIONER OF CORRECTION*
    (AC 39578)
    DiPentima, C. J., and Keller and Pellegrino, Js.
    Syllabus
    The petitioner, who previously had been convicted of one count of risk of
    injury to a child and two counts of sexual assault in the first degree,
    sought a writ of habeas corpus, claiming, inter alia, ineffective assistance
    of trial counsel. Specifically, the petitioner claimed, inter alia, that his
    trial counsel rendered ineffective assistance by failing to adequately
    cross-examine the state’s expert witness and to consult with and present
    testimony of a forensic psychologist. The habeas court rendered judg-
    ment denying the amended habeas petition and, thereafter, denied the
    petition for certification to appeal, and the petitioner appealed to this
    court. Held:
    1. The habeas court did not abuse its discretion in denying the petition for
    certification to appeal, the petitioner having failed to show that his claim
    was debatable among jurists of reason, that a court could have resolved
    the issue in a different manner, or that the question was adequate to
    deserve encouragement to proceed further.
    2. The habeas court properly determined that the petitioner was not denied
    his right to effective assistance of counsel:
    a. Trial counsel’s decision not to retain or to consult with an expert witness
    in preparation for cross-examination of the state’s expert witness did
    not result in deficient performance, as counsel’s decision was supported
    by legitimate and reasonable strategies, and was made in the exercise
    of reasonable professional judgment; moreover, trial counsel’s cross-
    examination of the state’s expert witness was not deficient, as he elicited
    testimony consistent with a legitimate trial strategy, and the petitioner
    failed to show how counsel’s line of questioning fell outside the range
    of competence displayed by lawyers with ordinary training and skill in
    criminal law.
    b. The petitioner could not prevail on his claim that his trial counsel was
    deficient in failing to present expert testmiony in support of an alterna-
    tive innocent explantation for the allegations of sexual abuse against
    the petitioner; trial counsel’s decision not to retain or consult with an
    expert was supported by legitimate and reasonable strategies for doing
    so, the innocent explanations that the petitioner wanted his trial counsel
    to put forth were matters of common sense that did not mandate the
    use of an expert witness, and although trial counsel did not present
    those theories in the exact manner that the petitioner now preferred,
    trial counsel clearly elicited testimony consistent with those theories
    by calling into question the veracity of the allegations against the peti-
    tioner, who failed to demonstrate how counsel was deficient in failing
    to introduce those theories through expert testimony.
    Argued September 6—officially released November 6, 2018
    Procedural History
    Amended petition for a writ of habeas corpus,
    brought to the Superior Court in the judicial district
    of Tolland and tried to the court, Fuger, J.; judgment
    denying the petition; thereafter, the court denied the
    petition for certification to appeal, and the petitioner
    appealed to this court. Appeal dismissed.
    Vishal K. Garg, for the appellant (petitioner).
    Nancy L. Chupak, senior assistant state’s attorney,
    with whom, on the brief, were Richard Colangelo, Jr.,
    state’s attorney, and Jo Anne Sulik, supervisory assis-
    tant state’s attorney, for the appellee (respondent).
    Opinion
    KELLER, J. The petitioner, Ricardo R., appeals fol-
    lowing the denial of his petition for certification to
    appeal from the judgment of the habeas court denying
    his amended petition for a writ of habeas corpus. The
    petitioner claims that the habeas court (1) abused its
    discretion in denying his petition for certification to
    appeal and (2) erred by failing to conclude that his
    criminal trial counsel provided ineffective assistance.1
    We disagree, and, accordingly, dismiss the appeal.
    On direct appeal from the petitioner’s underlying con-
    viction, our Supreme Court set forth the following rele-
    vant facts that the jury reasonably could have found.
    ‘‘When S was approximately four months old, her
    mother, F, began a relationship with the [petitioner].
    In 1996, when S was five years old, the [petitioner] and
    F moved into an apartment together. S grew up thinking
    of the [petitioner] as her father, and called him ‘Papi,’
    which means ‘dad’ in Spanish. The [petitioner] and F
    subsequently had two children together, S’s two half
    sisters, G and M. The [petitioner] also had fathered two
    children with his former girlfriend, J: a daughter, A,
    who was one year older than S, and a son, R. A and R
    lived with J, but they often stayed with S’s family and
    the siblings saw each other at least every weekend.
    ‘‘When F was away or at work, the [petitioner]
    watched the children. During that time, the [petitioner]
    engaged in a number of behaviors that made S feel
    uncomfortable, such as walking around the house
    naked. The [petitioner] also watched pornographic
    media while the children were home, and did not turn
    it off when they walked into the room while he was
    watching it. On one occasion, when S was in the third
    or fourth grade, the [petitioner] showed S a homemade
    videotape of himself and F engaged in various sexual
    acts. At times, the [petitioner] grabbed S’s hand and
    placed it on his crotch, over his clothing. S was afraid
    of the [petitioner] because he hit her, particularly when
    he was drunk, and sometimes with a closed fist. On
    occasions, S also witnessed the [petitioner] hitting and
    punching F. A testified at the [petitioner’s] trial, describ-
    ing the effect that the [petitioner’s] physical abuse had
    on the children’s behavior: ‘[I]t seemed like we were
    always trying everything in our power to just do what
    he wanted so that we didn’t have to get disciplined in
    that way.’
    ‘‘One particular day, the [petitioner] made S and A
    play a ‘modeling game.’ During the game, the [peti-
    tioner] waited in the living room, while the children
    went into the bedroom where they had a box of cos-
    tumes—dresses. They changed into the costumes, and,
    wearing no underwear as the [petitioner] had
    instructed, walked into the living room one at a time
    to be ‘judged’ by the [petitioner]. The [petitioner] told
    them that he would pay money to whoever walked best
    like a model. When S came into the living room, the
    [petitioner] had S lie down on the couch, and he placed
    his hands under her dress, rubbing her vaginal area
    with his hands, telling her not to worry, because he had
    done the same thing to A. On two or three occasions
    after that, the [petitioner] made S play the modeling
    game without A. He warned S that if she told anyone
    what had happened, everyone would blame her and
    hate her for it.
    ‘‘In 2001, F left the [petitioner] and moved into her
    mother’s home with her three daughters. The [peti-
    tioner] moved into a studio apartment in a neighboring
    town, where F allowed S and her sisters to continue
    visiting and staying with him. During this time period,
    the [petitioner] continued periodically to grab S surrep-
    titiously. On one occasion, when S was in the fifth grade,
    A and S, who had been playing outside, went inside to
    take a shower together. While they were in the shower,
    the [petitioner] walked into the bathroom, removed his
    clothes and got into the shower with the girls. He
    ‘bathed’ them, touching their private areas with his
    hands and made them do the same to him. At that time,
    S told no one what was transpiring between her and
    the [petitioner].
    ‘‘In 2002, when S was approximately eleven or twelve
    years old, the [petitioner] and F reconciled and moved
    back in together. The [petitioner’s] physical abuse of S
    continued, and the sexual abuse escalated significantly.
    The [petitioner] continued to touch S inappropriately,
    sometimes using his fingers to penetrate her vaginally.
    The [petitioner] also made S masturbate him with her
    hands and forced her to give and receive oral sex, strik-
    ing her if she refused or tried to stop him. In December,
    2002, S reported to a teacher at her school that the
    [petitioner] had hit her. As a result, S and her two sisters
    were removed from the home and placed with Kids In
    Crisis.2 After one month, G and M were returned to the
    family home, while S was placed with her grandparents.
    Some time thereafter, when S assured officials that
    everything was ‘okay’ at home, she was returned to F
    and the [petitioner]. At that point, S did not tell F that
    the [petitioner] was sexually abusing her, nor did she
    report any sexual abuse to social workers with the
    department of children and families, who now visited
    the home. When S returned home, the [petitioner] ini-
    tially refrained from abusing her. Once the social work-
    ers ceased monitoring the home, however, he resumed
    his physical and sexual abuse of S.
    ‘‘In February, 2004, F once again broke off her rela-
    tionship with the [petitioner], and she and the children
    moved out. Soon thereafter, A filed a complaint alleging
    that the [petitioner] had physically abused her, exposed
    the children to pornography, and made A and S shower
    with him and play the ‘modeling game.’ When the offi-
    cials who were investigating the complaint questioned
    S concerning A’s allegations, she confirmed that the
    [petitioner] had showered with A and S, and played the
    modeling game with them, but she did not discuss the
    sexual aspects of either incident, and she denied that
    the [petitioner] had touched her inappropriately in
    either instance. S did not tell investigators about the
    additional times that the [petitioner] had played the
    modeling game with her alone, and when investigators
    asked her if the [petitioner] had sexually assaulted her,
    she told them that he had not. After A filed her com-
    plaint, F did not allow the [petitioner] to see S, and F
    subsequently broke off contact with him.
    ‘‘S first told F about the sexual abuse in June, 2007,
    and F reported the sexual abuse to the Greenwich police
    the next day. The state subsequently charged the [peti-
    tioner] in a substitute information with one count of
    risk of injury to a child in violation of [General Statutes]
    § 53-21 (a) (2), and two counts of sexual assault in the
    first degree in violation of [General Statutes] § 53a-70
    (a) (1) and (2). The jury found the [petitioner] guilty
    on all counts. On January 7, 2010, the trial court sen-
    tenced the [petitioner] to twenty years incarceration
    on each count, with the sentences to run concurrently,
    followed by five years of special parole.’’ (Footnotes
    altered or omitted.) State v. Ricardo R., 
    305 Conn. 581
    ,
    584–87, 
    46 A.3d 139
    (2012). Our Supreme Court affirmed
    the petitioner’s conviction. 
    Id., 594. Additional
    facts will
    be set forth as necessary.
    On April 13, 2011, the petitioner, as a self-represented
    litigant, filed a petition for a writ of habeas corpus. On
    December 22, 2014, after being appointed counsel, the
    petitioner filed an amended petition alleging, in relevant
    part, that his representation by his criminal trial coun-
    sel, Attorney Wayne Keeney, was deficient because
    Keeney failed to adequately cross-examine, impeach,
    and challenge the testimony of the state’s expert wit-
    ness, Dr. Larry Rosenberg; that he failed to consult with
    and present testimony of a forensic psychologist; and
    that he failed to adequately present an alternative inno-
    cent explanation for the complainant’s allegations of
    sexual abuse.3 The petitioner’s first hearing was
    declared a mistrial by Oliver, J., and a new hearing on
    the amended petition was held by Fuger, J. The habeas
    court, in a sixteen page memorandum of decision,
    denied the petitioner’s amended petition.4 On August
    22, 2016, the petitioner filed a petition for certification
    to appeal, which was later denied. That denial is the
    focus of this appeal.
    I
    The petitioner first claims that the habeas court
    improperly denied his petition for certification to
    appeal. We disagree. Our Supreme Court has made clear
    that an appellate court need not reach the merits of a
    habeas appeal following a denial of certification unless
    the petitioner can demonstrate that the habeas court
    abused its discretion in doing so. Simms v. Warden,
    
    229 Conn. 178
    , 187, 
    640 A.2d 601
    (1994). In determining
    whether a habeas court abused its discretion in denying
    certification to appeal, the petitioner must demonstrate
    that the issues are ‘‘debatable among jurists of reason;
    that a court could resolve the issues [in a different
    manner]; or that the questions are adequate to deserve
    encouragement to proceed further.’’ (Internal quotation
    marks omitted.) Henderson v. Commissioner of Cor-
    rection, 
    181 Conn. App. 778
    , 794–95, 
    189 A.3d 135
    , cert.
    denied, 
    329 Conn. 911
    , 
    186 A.3d 707
    (2018).
    In ascertaining whether the habeas court abused its
    discretion in a denial of certification case, ‘‘we necessar-
    ily must consider the merits of the petitioner’s underly-
    ing claims to determine whether the habeas court
    reasonably determined that the petitioner’s appeal was
    frivolous. In other words, we review the petitioner’s
    substantive claims for the purpose of ascertaining
    whether those claims satisfy one or more of the three
    criteria . . . adopted by this court for determining the
    propriety of the habeas court’s denial of the petition
    for certification. Absent such a showing by the peti-
    tioner, the judgment of the habeas court must be
    affirmed.’’ (Internal quotation marks omitted.) Stephen
    J. R. v. Commissioner of Correction, 
    178 Conn. App. 1
    , 7, 
    173 A.3d 984
    (2017), cert. denied, 
    327 Conn. 995
    ,
    
    175 A.3d 1246
    (2018).
    For the reasons set forth in part II of this opinion,
    we conclude that the petitioner has failed to show that
    his claim is debatable among jurists of reason; that a
    court could resolve the issue in a different manner; or
    that the question is adequate to deserve encouragement
    to proceed further. We therefore conclude that the
    habeas court did not abuse its discretion in denying the
    petition for certification to appeal.
    II
    The petitioner claims that the habeas court improp-
    erly concluded that he received effective assistance of
    counsel. In particular, the petitioner argues that Keeney
    failed to ‘‘retain, consult with, [or] present testimony’’
    of an expert witness. He argues that this failure consti-
    tuted deficient performance because it resulted in trial
    counsel’s failure to (1) ‘‘adequately cross-examine the
    State’s expert’’; and (2) ‘‘adequately develop and present
    an alternative innocent explanation for the complain-
    ant’s allegation of abuse.’’5 We do not agree.
    ‘‘In Strickland v. Washington, [
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984)], the United States
    Supreme Court established that for a petitioner to pre-
    vail on a claim of ineffective assistance of counsel, he
    must show that counsel’s assistance was so defective
    as to require reversal of [the] conviction. . . . That
    requires the petitioner to show (1) that counsel’s perfor-
    mance was deficient and (2) that the deficient perfor-
    mance prejudiced the defense. . . . Unless a
    [petitioner] makes both showings, it cannot be said that
    the conviction . . . resulted from a breakdown in the
    adversary process that renders the result unreliable.
    . . . Because both prongs . . . must be established for
    a habeas petitioner to prevail, a court may dismiss a
    petitioner’s claim if he fails to meet either prong.’’ (Inter-
    nal quotation marks omitted.) Vazquez v. Commis-
    sioner of Correction, 
    128 Conn. App. 425
    , 430, 
    17 A.3d 1089
    , cert. denied, 
    301 Conn. 926
    , 
    22 A.3d 1277
    (2011).
    ‘‘To satisfy the performance prong . . . the peti-
    tioner must demonstrate that his attorney’s representa-
    tion was not reasonably competent or within the range
    of competence displayed by lawyers with ordinary train-
    ing and skill in the criminal law.’’ (Internal quotation
    marks omitted.) Michael T. v. Commissioner of Correc-
    tion, 
    319 Conn. 623
    , 631, 
    126 A.3d 558
    (2015). ‘‘We . . .
    are mindful that [a] fair assessment of attorney perfor-
    mance requires that every effort be made to eliminate
    the distorting effects of hindsight, to reconstruct the
    circumstances of counsel’s challenged conduct, and to
    evaluate the conduct from counsel’s perspective at the
    time. Because of the difficulties inherent in making the
    evaluation, a court must indulge a strong presumption
    that counsel’s conduct falls within the wide range of
    reasonable professional assistance; that is, the [peti-
    tioner] must overcome the presumption that, under the
    circumstances, the challenged action might be consid-
    ered sound trial strategy. . . . [C]ounsel is strongly
    presumed to have rendered adequate assistance and
    made all significant decisions in the exercise of reason-
    able professional judgment.’’ (Internal quotation marks
    omitted.) Hilton v. Commissioner of Correction, 
    161 Conn. App. 58
    , 66–67, 
    127 A.3d 1011
    (2015), cert. denied,
    
    320 Conn. 921
    , 
    132 A.3d 1095
    (2016); see also Michael
    T. v. Commissioner of 
    Correction, supra
    , 
    319 Conn. 632
    .
    ‘‘Similarly, the United States Supreme Court has
    emphasized that a reviewing court is required not sim-
    ply to give [the trial attorney] the benefit of the doubt
    . . . but to affirmatively entertain the range of possible
    reasons . . . counsel may have had for proceeding as
    [he] did. . . . [S]trategic choices made after thorough
    investigation of law and facts relevant to plausible
    options are virtually unchallengeable; [but] strategic
    choices made after less than complete investigation
    are reasonable precisely to the extent that reasonable
    professional judgments support the limitations on
    investigation.’’ (Internal quotation marks omitted.)
    Brian S. v. Commissioner of Correction, 172 Conn.
    App. 535, 539–40, 
    160 A.3d 1110
    , cert. denied, 
    326 Conn. 904
    , 
    163 A.3d 1204
    (2017).
    ‘‘Our standard of review of a habeas court’s judgment
    on ineffective assistance of counsel claims is well set-
    tled. In a habeas appeal, this court cannot disturb the
    underlying facts found by the habeas court unless they
    are clearly erroneous, but our review of whether the
    facts as found by the habeas court constituted a viola-
    tion of the petitioner’s constitutional right to effective
    assistance of counsel is plenary.’’ (Internal quotation
    marks omitted.) Hankerson v. Commissioner of Cor-
    rection, 
    150 Conn. App. 362
    , 367, 
    90 A.3d 368
    , cert.
    denied, 
    314 Conn. 919
    , 
    100 A.3d 852
    (2014).
    A
    The petitioner first argues that Keeney’s performance
    was deficient because he failed to adequately cross-
    examine Rosenberg. In particular, the petitioner argues
    that Keeney’s ‘‘inaccurate beliefs about the forensic
    psychology literature made it necessary for counsel to
    consult with a forensic mental health professional to
    prepare an effective cross-examination of Dr. Rosen-
    berg.’’ In addition, the petitioner argues that Keeney’s
    cross-examination of Rosenberg was deficient because
    he was required, but failed, to rebut misleading sugges-
    tions made by Rosenberg through cross-examination.
    We disagree.6
    Our Supreme Court has declined to adopt a bright
    line rule that an expert witness for the defense is neces-
    sary in every sexual assault case even when it may be
    helpful to the defense. Michael T. v. Commissioner of
    Correction, 
    307 Conn. 84
    , 100–101, 
    52 A.3d 655
    (2012).
    In addition, this court has held in factually similar cases
    to the present action that the failure to retain or consult
    with an expert witness does not constitute deficient
    performance. See, e.g., Grover v. Commissioner of Cor-
    rection, 
    183 Conn. App. 804
    , 821,         A.3d      (2018);
    Victor C. v. Commissioner of Correction, 179 Conn.
    App. 706, 719–20, 
    180 A.3d 969
    (2018) (decision not
    to retain expert witness was not deficient in light of
    counsel’s experience and training with regard to
    defending child sexual assault cases).
    With those decisions in mind, we set forth additional
    relevant facts necessary for the disposition of this claim.
    At the habeas trial, the court determined that Keeney
    ‘‘was fully aware of the expert hired by the state . . .
    understood the testimony he was expected to give, and
    declined to hire an expert of his own.’’7 Keeney testified
    at the habeas trial that he did not want to call a defense
    expert because he did not think it would register well
    with the jury; Keeney believed that any expert that
    he called would have largely agreed with Rosenberg’s
    testimony, which he felt would have only reinforced
    both Rosenberg’s testimony and the victim’s credibility.
    Accordingly, Keeney believed it was best to allow
    Rosenberg to testify on direct examination to the gen-
    eral behavioral concepts exhibited by child abuse vic-
    tims, and then cross-examine him and argue during his
    closing argument that Rosenberg could not say that any
    of these things had happened in this case because he
    lacked knowledge of the specific facts at issue in the
    present case. Keeney explained that his strategy was
    to ‘‘point out the deficiencies in the testimony of [Rosen-
    berg] as well as the many times the child had an opportu-
    nity to disclose the sexual activity . . . .’’
    Moreover, Keeney also testified that he did not want
    to call a defense expert to testify because he was con-
    cerned that the prosecution would then have an oppor-
    tunity to cross-examine the expert by referring to the
    specific facts of the case, which he believed would be
    harmful to the petitioner’s case. Keeney reiterated that
    he ran the risk of reinforcing testimony that the victim
    in this case already provided. The habeas court found
    that ‘‘Keeney did not want to hire an expert for the
    defense to discuss delayed and incremental reporting
    by child sex abuse victims, because it would necessitate
    informing that expert of some of the problematic spe-
    cific actions of the petitioner. For instance, such an
    action would have necessitated highlighting the fact
    that his own client had entered a shower, nude, while
    two young females, including the victim, were show-
    ering and engaged in soaping them down.’’ Accordingly,
    the habeas court concluded that Keeney’s decision to
    forego hiring an expert was sound and strategic.
    While the petitioner argues that Keeney’s ‘‘inaccurate
    beliefs about the forensic psychology literature made
    it necessary for [him] to consult with a forensic mental
    health professional to prepare an effective cross-exami-
    nation,’’ it was incumbent upon the petitioner to over-
    come the presumption that, under the circumstances,
    his decision not to consult with an expert was done in
    the exercise of reasonable professional judgment. See
    Brian S. v. Commissioner of 
    Correction, supra
    , 
    172 Conn. App. 540
    . The petitioner has failed to do so. The
    habeas court specifically found that Keeney ‘‘was fully
    aware of the expert hired by the state’’ and ‘‘understood
    the testimony he was expected to give.’’ To the extent
    that the petitioner challenges this finding as clearly
    erroneous, the record demonstrates that Keeney testi-
    fied that he observed Rosenberg testify in the past, had
    discussed his testimony with other colleagues in the
    legal community, and had previously consulted with
    sexual assault experts that he was considering hiring
    in other cases.
    Additionally, the record demonstrates that Keeney’s
    testimony at the habeas trial about his understanding
    of the relevant forensic psychology concepts, such as
    hypersexuality and grooming behavior, that the peti-
    tioner argues was ‘‘flatly contradicted’’ by Rosenberg,
    actually was largely consistent with Rosenberg’s testi-
    mony. The petitioner argues that Keeney’s knowledge
    of these concepts was ‘‘entirely inaccurate’’ because he
    testified at the habeas trial that child victims of sexual
    abuse adhered to a specific behavioral profile, that a
    child exhibiting hypersexuality and a child’s disruptive
    behavior at school could be useful in determining
    whether abuse occurred, and that grooming behaviors
    can be used to identify perpetrators. Although Rosen-
    berg did testify that he was unaware of ‘‘one distinctive
    profile’’ by which to accurately identify abuse victims,
    he testified that hypersexuality, acting out, and groom-
    ing behavior are in fact consistent characteristics of
    child sexual abuse victims and their perpetrators. Based
    on the sound findings of the habeas court, and guided
    by this court’s recent holdings, we conclude that under
    the circumstances of this case, trial counsel’s decision
    not to retain or consult with an expert witness in prepa-
    ration for cross-examination was supported by legiti-
    mate and reasonable strategies for doing so, and was
    made in the exercise of reasonable professional
    judgment.
    The petitioner also argues that Keeney’s cross-exami-
    nation of Rosenberg was deficient because he was
    required, but failed, to rebut misleading suggestions
    made by the witness through cross-examination. This
    argument, however, fails to appreciate the wide array of
    possible strategies trial counsel is permitted to pursue
    during his questioning. See Antonio A. v. Commis-
    sioner of Correction, 
    148 Conn. App. 825
    , 832, 
    87 A.3d 600
    (noting ‘‘attorney’s line of questioning on examina-
    tion of a witness clearly is tactical in nature’’), cert.
    denied, 
    312 Conn. 901
    , 
    91 A.3d 907
    (2014).
    A careful review of the criminal trial transcript shows
    that Keeney elicited testimony consistent with a sound
    and legitimate trial strategy. In particular, he elicited
    from Rosenberg that his testimony was not based on
    any particular facts of the present case, that his testi-
    mony was rooted in generalities, and that a ‘‘good many
    of the things that [Rosenberg] described could not lead
    to sexual assault.’’ Additionally, Keeney elicited from
    Rosenberg that he was not offering an opinion as to
    the credibility of the allegations in this case, in that the
    witness acknowledged the fact that he never inter-
    viewed S or A in the present case. Although the peti-
    tioner, with the benefit of hindsight, may now prefer
    that trial counsel had undermined Rosenberg’s testi-
    mony and the prosecution’s theories by eliciting addi-
    tional information from Rosenberg, he fails to
    sufficiently demonstrate how the line of questioning
    Keeney actually pursued was not part of a sound trial
    strategy, or how it fell outside the range of competence
    displayed by lawyers with ordinary training and skill
    in the criminal law.8 See Michael T. v. Commissioner
    of 
    Correction, supra
    , 
    319 Conn. 632
    (explaining that
    ‘‘[e]ven the best criminal defense attorneys would not
    defend a particular client in the same way’’). Accord-
    ingly, we conclude that Keeney’s cross-examination of
    Rosenberg was not deficient.
    B
    The petitioner next argues that Keeney’s ‘‘failure to
    present expert testimony in support of an alternative
    innocent explanation for the complainant’s allegations
    of abuse’’ constituted deficient performance. First, the
    petitioner argues that reasonably competent counsel
    would have explained that the antagonism toward the
    petitioner that was demonstrated by the complainant’s
    overly anxious mother could have influenced the com-
    plainant to believe falsely that abuse occurred. Second,
    he argues that ‘‘reasonably competent counsel would
    have argued that the adolescent complainant fabricated
    the extent of the abuse in an attempt to deflect blame
    away from herself from her own behavioral and aca-
    demic shortcomings.’’ We find this argument unper-
    suasive.
    The petitioner’s argument is flawed for several rea-
    sons. First, as we concluded in part II A of this opinion,
    Keeney’s decision not to retain or consult with an expert
    was supported by legitimate and reasonable strategies
    for doing so. Although the petitioner argues that Keeney
    had no strategic reason for not presenting an expert, he
    seems to overlook the soundness of Keeney’s strategy.
    Keeney was reasonably concerned that presenting an
    expert could have reinforced both Rosenberg’s testi-
    mony and the victim’s credibility, and that presenting
    testimony from an expert would have afforded the state
    an opportunity to cross-examine the expert by means
    of the specific facts of the case, facts that were likely
    to be viewed as damaging to the petitioner’s case. As
    our Supreme Court has noted, ‘‘[a]lthough an expert
    may have been helpful to the defense, there is always
    the possibility that an expert called by one party, upon
    cross-examination, may actually be more helpful to the
    other party.’’ Michael T. v. Commissioner of Correc-
    
    tion, supra
    , 
    307 Conn. 101
    .
    Second, as the respondent Commissioner of Correc-
    tion points out, the innocent explanations that the peti-
    tioner wanted Keeney to put forth are matters of
    common sense that do not mandate the use of an expert
    witness. While Keeney may not have presented these
    theories in the exact manner that the petitioner now
    prefers, it does not automatically dictate a conclusion
    that his performance was deficient. See Harrington v.
    Richter, 
    562 U.S. 86
    , 106, 
    131 S. Ct. 770
    , 
    178 L. Ed. 2d 624
    (2011) (explaining that ‘‘[r]are are the situations in
    which the ‘wide latitude counsel must have in making
    tactical decisions’ will be limited to any one technique
    or approach’’). Keeney pursued a strategy that focused
    largely on the victim’s credibility; as he indicated, he
    wanted to point ‘‘out the deficiencies in the testimony
    of the state’s expert as well as the many times the child
    had an opportunity to disclose the sexual activity
    . . . .’’ For example, he elicited testimony from the
    victim and her mother about the timing of the victim’s
    allegations of sexual abuse, highlighting for the jury that
    the victim’s disclosure of sexual abuse came around
    the time the victim had a baby and dropped out of
    school, and that the victim’s mother thought that her
    daughter’s life was ‘‘off track.’’ The victim also testified
    that her disclosure came around the time her mother
    and the petitioner had broken up, and after the peti-
    tioner became involved with another woman. Keeney
    then elicited testimony from Rosenberg that the prepon-
    derance of false allegations made by complainants are
    made in situations where there is a custody dispute
    or visitation dispute underway between the parents or
    where there is an acrimonious divorce or break up.
    Furthermore, Keeney underscored during closing
    arguments all of the opportunities the victim had to
    disclose these sexual abuse allegations and had not
    done so. He then called into question the truthfulness
    of the mother’s testimony, highlighted that she had a
    ‘‘fractured relationship’’ with the petitioner, and sug-
    gested that she had ‘‘animosity’’ for him. Although
    Keeney may not have framed his theory and arguments
    to the jury in the exact manner the petitioner now
    desires, Keeney clearly elicited testimony consistent
    with those theories by calling into question the veracity
    of the allegations against the petitioner. The habeas
    court noted that trial counsel made ‘‘a strong effort to
    cross examine the victim to undermine her testimony,
    pointing out delays in reporting and initial denials by
    the victim.’’ The habeas court also found that Keeney
    conducted ‘‘a full cross-examination of this young vic-
    tim and, while unsuccessful in convincing the jury of
    her mendacity, nevertheless performed admirably.’’ We
    agree with the habeas court.
    The petitioner was required to demonstrate that his
    attorney’s representation was not reasonably compe-
    tent or within the range of competence displayed by
    lawyers with ordinary training and skill in the criminal
    law. Although the petitioner did point out these particu-
    lar theories that Keeney could have pursued with a
    defense expert, he failed to demonstrate sufficiently
    how failing to introduce these theories through expert
    testimony made Keeney’s performance unreasonable.
    See Clinton S. v. Commissioner of Correction, 
    174 Conn. App. 821
    , 828, 
    167 A.3d 389
    , cert. denied, 
    327 Conn. 927
    , 
    171 A.3d 59
    (2017). Accordingly, we conclude
    that trial counsel’s decision not to pursue these alterna-
    tive theories that supported a not guilty verdict through
    expert testimony did not constitute deficient per-
    formance.
    We therefore conclude that the petitioner has failed to
    show that his claim of ineffective assistance of counsel
    involves issues that are debatable amongst jurists of
    reason, that a court could resolve the issues in a differ-
    ent manner, or that the issues are adequate to deserve
    encouragement to proceed further. Accordingly, the
    habeas court did not abuse its discretion in denying
    the petition for certification to appeal with respect to
    these claims.
    The appeal is dismissed.
    In this opinion the other judges concurred.
    * In accordance with our policy of protecting the privacy interests of the
    victims of sexual abuse and the crime of risk of injury to a child, we decline
    to identify the victim or others through whom the victim’s identity may be
    ascertained. See General Statutes § 54-86e.
    1
    The petitioner also claims that the habeas court failed to address or
    make factual findings with respect to his allegation that trial counsel failed
    to retain an expert to prepare for cross-examination of the state’s expert,
    Larry Rosenberg, a psychologist, making the record inadequate for this
    court’s review of his ineffective assistance of counsel claim.
    As explained in this opinion, the petitioner is appealing from a judgment
    by the habeas court denying his petition for certification to appeal. After
    the petitioner filed the present appeal, the petitioner filed a motion for
    articulation on May 8, 2017, arguing that the habeas court failed to address
    whether an expert could have assisted counsel with preparing the cross-
    examination of Rosenberg. Pursuant to General Statutes § 52-470 (g) and
    Practice Book § 80-1, because Judge Fuger, who presided over the habeas
    trial, retired effective February 7, 2017, the motion was directed to Judge
    Bright who denied the motion after finding that it could not be addressed
    on the merits. See Grover v. Commissioner of Correction, 
    183 Conn. App. 804
    , 806 n.1,       A.3d      (2018). The petitioner asserts that because he is
    unable to supplement the inadequate record due to the retirement of Judge
    Fuger, this court should reverse the habeas court’s decision and remand
    the case for a new habeas trial.
    The petitioner argues that Claude v. Claude, 
    143 Conn. App. 307
    , 
    68 A.3d 1204
    (2013), demands that a new habeas trial be granted. As we recently
    explained, though, Claude presented ‘‘the unique situation in which the trial
    court failed to provide this court with any articulation of its decision, even
    after being ordered to do so. . . . As it was impossible to divine the basis
    for the court’s decision from its ‘postcard order,’ and because the plaintiff
    could not be faulted for the inadequate record, we remanded the case for
    a new hearing.’’ (Citations omitted; emphasis added.) Grover v. Commis-
    sioner of 
    Correction, supra
    , 
    183 Conn. App. 806
    n.1 (declining to grant
    petitioner’s request for new habeas trial). While the ‘‘unique circumstances’’
    in Claude demanded that a new hearing be granted; Claude v. 
    Claude, supra
    ,
    
    143 Conn. App. 312
    ; the facts of this case do not demand such relief.
    We recognize that a trial court must provide a reviewing court with the
    ‘‘necessary factual and legal conclusions’’ for review to be proper; State v.
    Payne, 
    121 Conn. App. 308
    , 314, 
    996 A.2d 302
    , cert. denied, 
    297 Conn. 919
    ,
    
    996 A.2d 1193
    (2010); however, explanations of those conclusions need not
    be to the point of pedantry. Although the habeas court did not explicitly
    address whether the petitioner’s trial counsel had performed deficiently for
    not consulting with an expert in preparation of the cross-examination of
    Rosenberg, it is clear that the habeas court implicitly rejected this claim
    when it determined that counsel had made a sound, strategic decision not
    to hire an expert for the petitioner’s criminal trial. Accordingly, we conclude
    that Judge Fuger’s unavailability is of no moment because the record is
    sufficient for us to reach the merits of this particular allegation.
    2
    Our Supreme Court explained that Kids In Crisis ‘‘is an organization that
    provides crisis counseling and temporary shelter for children.’’ State v.
    Ricardo R., 
    305 Conn. 581
    , 586 n.5, 
    46 A.3d 139
    (2012).
    3
    In the petitioner’s amended petition for a writ of habeas corpus, he also
    claimed that his constitutional right to effective assistance of appellate
    counsel was violated. This claim, however, was withdrawn on November
    17, 2015.
    4
    At the conclusion of the habeas court’s memorandum of decision, it
    indicated: ‘‘The petition for a writ of habeas corpus is, therefore, denied
    and the petition dismissed.’’ We ascribe the court’s reference to a dismissal
    of the petition to be a scrivener’s error. The memorandum of decision
    explicitly states in its discussion section that the ‘‘court disagrees with the
    position of the petitioner and will deny the petition and decline to issue a
    writ of habeas corpus.’’ (Emphasis added.) We find no other indication in
    the court’s memorandum of decision that supports a conclusion that the
    court dismissed the petition in whole or in part. Additionally, there are
    no special defenses filed that would justify a dismissal of the petition.
    Accordingly, we read the habeas court’s order to be solely a denial of the
    petitioner’s petition for a writ of habeas corpus.
    5
    To the extent that the petitioner is challenging on appeal that trial counsel
    failed to adequately pursue the production and disclosure of certain confi-
    dential and privileged materials, to wit, the victim’s school records, or that
    the habeas court erred in excluding certain evidence offered by the peti-
    tioner, we deem these issues abandoned because they are inadequately
    briefed. Jalbert v. Mulligan, 
    153 Conn. App. 124
    , 133, 
    101 A.3d 279
    (explaining
    that issues inadequately briefed need not be reviewed by appellate court),
    cert. denied, 
    315 Conn. 901
    , 
    104 A.3d 107
    (2014).
    6
    Accordingly, because we conclude that Keeney’s performance was not
    deficient, we need not address the prejudice prong under Strickland. See
    Antwon W. v. Commissioner of Correction, 
    172 Conn. App. 843
    , 865, 
    163 A.3d 1223
    (explaining that prejudice analysis is not germane to discussion
    when disposition of the case is resolved on performance prong), cert. denied,
    
    326 Conn. 909
    , 
    164 A.3d 680
    (2017). We note, however, that the habeas court
    concluded that the petitioner was not prejudiced by the trial counsel’s
    representation of the petitioner. The habeas court found the following: ‘‘[I]t
    is clear that the first witness, the victim, clearly and consistently testified
    before this jury to all of the elements of the crimes of which the petitioner
    stands convicted. Trial defense counsel did make a strong effort to cross
    examine the victim to undermine her testimony, pointing out the delays in
    reporting and initial denials by the victim. Nevertheless, the victim comes
    across . . . as credible. . . . This habeas court is not convinced that the
    testimony of the forensic psychologists would [have] in any way undermined
    the victim’s testimony. In other words, while there is some testimony and
    studies by psychology experts pertinent to the delayed and incremental
    reporting by victims of child sexual abuse that may be a great import
    on the field of psychology, such testimony is of limited, if any, use in a
    criminal trial.’’
    7
    Keeney testified that he was familiar with Rosenberg and that he had
    ‘‘seen him testify before.’’ He also testified that he had ‘‘discussed this
    testimony—this style of testimony with several of [his] colleagues who are
    . . . in the top tier, criminal defense attorneys in the state.’’ Furthermore,
    when asked what Keeney’s basis was for certain beliefs he had in regard
    to whether a child actually had been abused, he testified: ‘‘[b]ased on my
    handling of these types of cases before. I’ve had interaction with sexual
    assault experts in the past, discussed these matters with experts that I may
    have been considering hiring for my own cases, also observing the testimony
    of experts and discussing their effectiveness with other colleagues who
    practiced in the same strata, if you will, of criminal defense . . . .’’
    8
    We note that the petitioner did not call a legal expert at the habeas trial
    to discuss what the prevailing norms in Connecticut are with respect to
    consulting with or presenting testimony of a child sexual assault expert at
    trial. While the petitioner is correct that expert testimony is not necessarily
    required in every case raising a Strickland inquiry; Evans v. Warden, 
    29 Conn. App. 274
    , 280, 
    613 A.2d 327
    (1992); presenting expert testimony may
    help a petitioner carry his burden in demonstrating deficient performance.
    

Document Info

Docket Number: AC39578

Citation Numbers: 198 A.3d 630, 185 Conn. App. 787

Judges: DiPentima, Keller, Pellegrino

Filed Date: 11/6/2018

Precedential Status: Precedential

Modified Date: 10/19/2024