Michael T. v. Commissioner of Correction

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MICHAEL T. v. COMMISSIONER OF CORRECTION
(SC 19229)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued April 28—officially released November 24, 2015
Adam E. Mattei, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, Frederick W. Fawcett, former supervisory assistant
state’s attorney, and Gerard P. Eisenman, former
senior assistant state’s attorney, for the appellant
(respondent).
Temmy Ann Pieszak, resource attorney for habeas
corpus matters, for the appellee (petitioner).
Opinion
ZARELLA, J. The sole issue in this certified appeal
is whether counsel representing the petitioner, Michael
T.,1 at his criminal trial rendered ineffective assistance
by failing to present certain expert testimony. At trial,
the six year old daughter of the petitioner’s former
girlfriend accused him of having sexually abused her,
and his trial counsel did not present expert testimony
regarding the suggestibility of young children and the
reliability of their recollections. The petitioner was con-
victed of sexual assault in the first degree in violation
of General Statutes (Rev. to 2001) § 53a-70 (a) (2) and
risk of injury to a child in violation of General Statutes
(Rev. to 2001) § 53-21 (a) (2), and subsequently filed a
petition for a writ of habeas corpus. The habeas court
concluded that the petitioner’s conviction was obtained
in violation of his right to effective assistance of counsel
under the sixth and fourteenth amendments to the
United States constitution, and article first, § 8, of the
Connecticut constitution, because his trial counsel
failed to present certain expert testimony. The Appel-
late Court subsequently affirmed the habeas court’s
judgment.2 Michael T. v. Commissioner of Correction,
144 Conn. App. 45, 62, 71 A.3d 660 (2013). The respon-
dent, the Commissioner of Correction, now appeals
from the judgment of the Appellate Court, claiming that
the failure of the petitioner’s trial counsel to present
expert testimony was objectively reasonable because
there was a strategic justification for not presenting
such testimony, and, even if the omission was unreason-
able, the error was harmless. We conclude that coun-
sel’s performance was objectively reasonable and
therefore reverse the judgment of the Appellate Court.
The Appellate Court describes in detail the facts
underlying the petitioner’s criminal conviction; see id.,
48–50; which we briefly summarize. In 2002, the victim,
E, was four years old when she complained to her
mother of vaginal pain. E was diagnosed with trichomo-
nas,3 which led medical personnel to suspect that E
may have been sexually abused. After the diagnosis, E
was interviewed multiple times by Cynthia Pfeifer, a
forensic interviewer and social worker from the Depart-
ment of Children and Families (department), but denied
that anyone had sexually abused her. E’s mother also
tested positive for trichomonas, and, although Pfeifer
asked the petitioner to get tested, he failed to do so.
Approximately one year after E was diagnosed, she
attended a presentation concerning inappropriate
touching in her kindergarten class, after which she told
her mother that the petitioner had sexually abused her.
Thereafter, a second forensic interview was conducted
in which E detailed the incident in which the petitioner
had sexually abused her.
At trial, E testified to the same effect, alleging that
the petitioner had sexually abused her. In addition to
E, the state called four expert witnesses to testify
regarding trichomonas and generally regarding the
reliability of sexual abuse disclosures by children. The
petitioner’s trial counsel cross-examined each of the
state’s witnesses but did not call an expert witness to
testify in the petitioner’s defense. Instead, counsel
called only the petitioner, who denied sexually abusing
E. The jury found the defendant guilty as charged.
The petitioner subsequently filed a petition for a writ
of habeas corpus, alleging, inter alia, that his trial coun-
sel had rendered ineffective assistance in failing to pre-
sent expert testimony regarding (1) medical issues
relating to trichomonas, and (2) the reliability of E’s
disclosure, in order to rebut the state’s expert testimony
on those subjects.4 An evidentiary hearing was held at
which the petitioner presented the testimony of
Suzanne M. Sgroi, a physician experienced in working
with victims and offenders in child sexual abuse cases,
and Michael Blanchard, an attorney. The petitioner’s
trial counsel was unavailable to testify at the hearing
because he was deceased.
At the habeas hearing, Sgroi testified ‘‘that there were
a variety of problems in the way [E] was interviewed
in this case by her mother and the professionals who
were investigating the complaint of sexual abuse. Sgroi
stated that, in her professional opinion, the investiga-
tion in the present case was flawed because it was
conducted in an accusatory atmosphere in which the
reliability of [E’s] disclosure that the petitioner had
sexually abused her was tainted by repetitive inter-
viewing.’’ Id., 51. ‘‘Sgroi [also] testified that research
has shown that children under five years of age are
particularly susceptible to leading and contaminating
interview approaches and often have developmental
barriers for providing the detailed and contextual infor-
mation that enhances the credibility of their reports.
Sgroi further testified that [E had] . . . difficulties with
verbal comprehension, speech, and positions and spa-
tial relations [which] tended to make her a less compe-
tent reporter than other children of the same age. Sgroi
testified that [E’s] developmental delays made [her]
even more susceptible to leading and contaminating
interview approaches.’’ (Internal quotation marks omit-
ted.) Id., 51–52. ‘‘Sgroi further testified that there were
a variety of problems in the way the [second] forensic
interview of [E] was conducted. Sgroi testified that,
although the interviewer properly used open-ended
questioning techniques throughout the interview, she
failed to address and resolve several contradictions con-
tained in [E’s] report of sexual abuse.’’ Id., 54.
Blanchard testified that, in a case involving sexual
abuse allegations such as the present case, a reasonable
defense attorney ‘‘normally’’ would consult an expert
such as Sgroi. Blanchard further testified that he
believed that presenting expert testimony is at least as
important as cross-examining the state’s expert wit-
nesses and that certain points Sgroi testified to at the
evidentiary hearing never were conveyed to the jury
at the petitioner’s criminal trial. On the basis of this
testimony, the habeas court determined that the peti-
tioner established that his trial counsel had rendered
ineffective assistance, and the court granted the petition
with respect to that claim.
The respondent, on the granting of certification,
appealed from the judgment of the habeas court to
the Appellate Court. The Appellate Court affirmed the
habeas court’s judgment, concluding that the petition-
er’s trial counsel had failed to present expert testimony
regarding medical issues relating to trichomonas with-
out addressing the issue of counsel’s failure to present
expert testimony regarding the reliability of the disclo-
sure of sexual abuse by children. Michael T. v. Commis-
sioner of Correction, 122 Conn. App. 416, 417–18, 425,
999 A.2d 818 (2010). This court subsequently reversed
the judgment of the Appellate Court and remanded the
case for consideration of the remaining issue, namely,
whether the failure of the petitioner’s trial counsel to
present expert testimony regarding the suggestibility
of young children and the reliability of a child’s recollec-
tion constituted ineffective assistance. Michael T. v.
Commissioner of Correction, 307 Conn. 84, 103–104,
52 A.3d 655 (2012). On remand, the Appellate Court
determined that the petitioner’s trial counsel had ren-
dered ineffective assistance by failing to present such
expert testimony and thus affirmed the habeas court’s
judgment. Michael T. v. Commissioner of Correction,
supra, 144 Conn. App. 47, 62. The respondent then
appealed from the judgment of the Appellate Court to
this court. We granted certification to appeal, limited
to the following question: ‘‘Did the Appellate Court
properly determine that defense counsel provided inef-
fective assistance by failing to call an expert to testify
to the suggestibility of young children and the reliability
of a child’s recollection one year after the alleged
event?’’ Michael T. v. Commissioner of Correction, 310
Conn. 938, 79 A.3d 891 (2013).
On appeal to this court, the respondent claims that
trial counsel’s failure to call such an expert did not
render his performance constitutionally deficient
because (1) the record reveals strategic reasons for not
calling such an expert, (2) the testimony of such an
expert would have been inadmissible, and (3) pre-
senting the testimony of such an expert would have
been a novel tactic. The respondent further claims that,
even if trial counsel’s performance was constitutionally
deficient, the petitioner was not prejudiced by that defi-
cient performance because counsel, in cross-examining
the state’s experts and in closing argument, raised the
same points that a defense expert would have raised
in his or her testimony. The petitioner rejects these
contentions, claiming instead that (1) reasonable coun-
sel would have known that an expert would have been
helpful to the petitioner’s defense, and (2) the petitioner
was prejudiced by trial counsel’s omission because an
expert like Sgroi would have provided the jury with
information that the petitioner’s trial counsel was
unable to elicit on cross-examination of the state’s
experts.5 We conclude that trial counsel’s performance
was objectively reasonable and, therefore, that the peti-
tioner failed to prove his ineffective assistance claim.
Before analyzing the respondent’s claims, we set
forth the applicable standard of review and the law
governing ineffective assistance of counsel claims.
‘‘When reviewing the decision of a habeas court, the
facts found by the habeas court may not be disturbed
unless the findings were clearly erroneous. . . . The
issue, however, of [w]hether the representation [that]
a defendant received at trial was constitutionally inade-
quate is a mixed question of law and fact. . . . As such,
that question requires plenary review by this court
unfettered by the clearly erroneous standard.’’ (Citation
omitted; internal quotation marks omitted.) Rodriguez
v. Commissioner of Correction, 312 Conn. 345, 351–52,
92 A.3d 944 (2014).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel.’’ (Citations omitted; internal quotation
marks omitted.) Gonzalez v. Commissioner of Correc-
tion, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub
nom. Dzurenda v. Gonzalez, U.S. , 134 S. Ct.
639, 187 L. Ed. 2d 445 (2013).
‘‘As enunciated in Strickland v. Washington, [466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]
. . . [a] claim of ineffective assistance of counsel con-
sists of two components: a performance prong and a
prejudice prong. To satisfy the performance prong . . .
the petitioner must demonstrate that his attorney’s rep-
resentation 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 demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . A court
can find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong . . . .’’ (Citation
omitted; internal quotation marks omitted.) Michael T.
v. Commissioner of Correction, supra, 307 Conn. 91.
With respect to the performance prong of Strickland,
we are mindful that ‘‘[j]udicial scrutiny of counsel’s
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.
. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances 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 defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . There are countless
ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Strickland v. Washington, supra, 466 U.S. 689.
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 . . . .’’ (Citations omitted; internal quotation
marks omitted.) Cullen v. Pinholster, U.S. , 131
S. Ct. 1388, 1407, 179 L. Ed. 2d 557 (2011). ‘‘[S]trategic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchal-
lengeable; [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.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 680, 51 A.3d 948 (2012).
Turning to the present case, we first apply the perfor-
mance prong of the Strickland test and consider
whether counsel’s failure to call an expert to testify
regarding the suggestibility of young children and the
reliability of a child’s recollection was objectively rea-
sonable. The respondent claims that this omission was
objectively reasonable because there was a strategic
reason not to offer such expert testimony, namely, to
prevent the state from offering a prior consistent state-
ment made by E, especially when counsel could effec-
tively ‘‘advanc[e] the issue of suggestibility through
cross-examination . . . .’’ We note that the respon-
dent’s claim appears to be premised on certain assump-
tions. First, it assumes that the video recording of the
second forensic interview, which occurred subsequent
to E’s disclosure to her mother and in which E made
some statements that were inconsistent with or
extended beyond the trial testimony, would have been
admissible as a prior consistent statement. See Conn.
Code Evid. § 6-11 (addressing limits on admissibility of
prior consistent statements). Second, it assumes that
any expert opinion evidence that served to impeach the
reliability of E’s disclosure would have provided a basis
to admit the video recording, whereas elicitation of
comparable evidence through cross-examination of the
state’s witnesses would not have provided a basis for
its admission. In the absence of any challenge to these
assumptions by the petitioner, we accept them in ana-
lyzing the respondent’s claim. Thus, the question before
us is not merely whether reasonable counsel could have
concluded that the second forensic interview, on bal-
ance, was more damaging than helpful to the defense.
Instead, the question is whether reasonable counsel
could have concluded that the benefit of presenting
expert opinion regarding the reliability of E’s delayed
disclosure of abuse was outweighed by any damaging
effect of the video-recorded interview in light of other
means to impeach that disclosure.
To resolve this claim, we first must set forth the
following additional facts regarding the petitioner’s
criminal trial. At that trial, the state called Lisa Melillo-
Bush, a school psychologist and forensic interviewer,
as an expert to testify regarding delayed disclosures of
sexual abuse by children. On cross-examination, the
petitioner’s trial counsel asked Melillo-Bush whether
she was familiar with the ‘‘McMartin case,’’ a case in
which the mishandling of an investigation into allega-
tions of a preschool teacher’s alleged sexual abuse of
students caused numerous children to fabricate their
allegations.6 See generally Buckey v. Los Angeles, 968
F.2d 791 (9th Cir.), cert. denied sub nom. Manhattan
Beach v. Buckey, 506 U.S. 999, 113 S. Ct. 599, 600, 121
L. Ed. 2d 536 (1992). The senior assistant state’s attorney
(prosecutor) objected, and, outside the presence of the
jury, the petitioner’s counsel explained that he was
attempting to ask Melillo-Bush ‘‘about a situation where
kids can feed off hysteria or suggestion . . . .’’ The
prosecutor responded that, ‘‘[i]f we go down that road,
I’m going to ask that the [video recording of E’s second
forensic interview] be introduced [as a prior consistent
statement]. [Counsel] is making the claim that children
are susceptible to suggestion . . . .’’ At that point, the
petitioner’s counsel stated that he would no longer pur-
sue that line of questioning.
The respondent argues that this exchange demon-
strates that, if the petitioner’s counsel had called an
expert like Sgroi to cast doubt on the reliability of
E’s disclosure, the state would have offered the video
recording of the second forensic interview of E as a
prior consistent statement. Preventing this from hap-
pening, the respondent argues, is a reasonable strategic
basis for not presenting expert testimony such as
Sgroi’s.7 We agree.
Preventing the jury from watching the video
recording of E’s prior consistent statement constitutes
a reasonable strategic basis for declining to call an
expert witness like Sgroi because it would have been
damaging to the petitioner’s defense. Specifically, the
video recording would have buttressed E’s credibility
because her disclosure to the forensic interviewer was
consistent with her trial testimony. See Conn. Code
Evid. § 6-11 (b) (purpose of prior consistent statement
is to rebut impeachment of witness’ credibility). More-
over, during the second forensic interview, E disclosed
details about the abuse that she had not disclosed dur-
ing her testimony, including that the petitioner had told
her to ‘‘shut up’’ and had called her a ‘‘bitch,’’ that the
petitioner had threatened to hurt E if she disclosed the
abuse, and that she had been wearing her ‘‘Christmas
clothes’’ that her ‘‘Nana’’ had given her when the peti-
tioner sexually abused her. A reasonable defense attor-
ney understandably would not have wanted the jury to
hear this evidence because it would have generated
sympathy for E, cast the petitioner in an unfavorable
light, and added details to the sexual abuse, thereby
bolstering E’s credibility. In addition, its admission
would have provided a second explanation for E’s
delayed disclosure that was consistent with other evi-
dence in the case, namely, that the earlier denials were
made out of fear that the petitioner would harm her.
The petitioner resided in the household before E dis-
closed the abuse to her mother but had left by the time
she did disclose it.
With respect to the other side of the equation, we
are mindful that the habeas court found Sgroi, who
testified as to both the possibility of nonsexual trans-
mission of trichomonas and the problems with the inter-
view methods, to be ‘‘highly credible.’’ Nonetheless, we
conclude that, in making a tactical decision whether
to proffer expert testimony, reasonable counsel would
have recognized that Sgroi’s opinion would have been
vulnerable to attack on various grounds.8 For example,
Sgroi deemed the most significant contamination to
have occurred in the circumstances under which E had
disclosed the abuse to her mother following the school
presentation on inappropriate touching. Sgroi found it
very pertinent that the application for the petitioner’s
arrest warrant and the investigative interview report
both inaccurately reflected that E had spontaneously
disclosed the abuse to her mother after the presenta-
tion, a factor that would have suggested reliability. Nei-
ther the application nor the report, however, was
introduced at the petitioner’s criminal trial; nor did any-
one attest to that fact during the trial. Sgroi also found
it extremely significant that E’s mother had testified
that she added in words that E left out, specifically
‘‘private areas,’’ when E disclosed what the petitioner
had done. The application for the arrest warrant, how-
ever, included what appeared to be direct quotations
of E’s statement to her mother in which E is reported
to have said that the petitioner ‘‘put his thing-thing down
there’’; (emphasis added; internal quotation marks omit-
ted); instead of naming her body part or referring generi-
cally to her private parts. If the petitioner’s trial counsel
had attempted to exploit the mother’s addition of ‘‘pri-
vate areas’’ to E’s disclosure, presumably the state
would have elicited evidence to clarify the circum-
stances.
We therefore conclude that there was a legitimate,
strategic reason not to call an expert like Sgroi and that
trial counsel’s performance was not constitutionally
deficient. See, e.g., Williamson v. Moore, 221 F.3d 1177,
1181 (11th Cir. 2000) (trial counsel’s performance was
not unreasonable when counsel declined to present
testimony of certain witnesses because, if they had testi-
fied, ‘‘conflicting hurtful evidence most likely would
also have been brought out’’), cert. denied, 534 U.S.
903, 122 S. Ct. 234, 151 L. Ed. 2d 168 (2001); Antonio
A. v. Commissioner of Correction, 148 Conn. App. 825,
831, 87 A.3d 600 (trial counsel’s performance was not
unreasonable when counsel declined to cross-examine
witness on certain subject matter because, if counsel
had done so, damaging forensic interview of child vic-
tim may have been introduced into evidence), cert.
denied, 312 Conn. 901, 91 A.3d 907 (2014). Accordingly,
we need not consider the respondent’s additional rea-
sons why trial counsel provided adequate assistance or
address the prejudice prong of the Strickland test.
The petitioner does not dispute that the video
recording of E’s second forensic interview would have
been damaging to his case or that preventing the state
from offering it constituted a reasonable, strategic basis
for not presenting the testimony of an expert like Sgroi.
Instead, the petitioner claims that his trial counsel’s
failure to call an expert could not have been a reason-
able tactical decision because counsel failed to investi-
gate the usefulness of such an expert. According to the
petitioner, ‘‘the habeas court found [that] trial counsel
had failed to investigate the utility of an expert’’ and
‘‘found [that] trial counsel elected not to use an expert
even as an advisor.’’ The petitioner claims that, without
consulting an expert, counsel could not reasonably have
decided whether offering the testimony of such an
expert would have been useful to the petitioner’s
defense.9 The petitioner’s claim has no merit.
As an initial matter, the premise of the petitioner’s
claim is incorrect; the habeas court did not make a
finding that the petitioner’s trial counsel failed to inves-
tigate the utility of an expert. Instead, the habeas court
found that ‘‘[t]here [was] no evidence aside from [the]
petitioner’s scant testimony regarding [his trial coun-
sel’s] pretrial and investigative efforts,’’ leaving the
habeas court ‘‘in the untenable position of speculating
as to what [counsel] exactly did as part of his investiga-
tion.’’ This led the habeas court to conclude that it was
‘‘unable to address the [petitioner’s] claims attacking
[counsel’s] pretrial and investigative efforts in any
meaningful way.’’ Thus, the petitioner’s claim concern-
ing counsel’s failure to investigate has no factual basis.
It is possible that trial counsel thoroughly investigated
whether it would have been useful to offer the testimony
of an expert or even that he consulted with one. We
do not know, however, because, as the habeas court
observed, the petitioner failed to present any evidence
regarding trial counsel’s pretrial and investigative
efforts.
What we do know from the record indicates that,
contrary to the petitioner’s claim, trial counsel knew
that eliciting testimony regarding the suggestibility of
young children was a viable means of impeaching E.
Indeed, the petitioner’s counsel indicated to the trial
court that he had asked Melillo-Bush about the ‘‘McMar-
tin case’’ because that was a case in which children
were influenced by the suggestions of adults. Also,
immediately preceding counsel’s question regarding the
McMartin case, he asked Melillo-Bush, ‘‘[i]sn’t it a fact
that kids especially that age . . . four to five years old
. . . want to please adults very much . . . [and] are
very receptive to suggestions . . . ?’’ Thus, it is clear
from counsel’s cross-examination of Melillo-Bush that
he knew of the phenomenon of children being suscepti-
ble to suggestion and that experts have opinions on
that subject matter. Accordingly, the petitioner’s claim
that trial counsel failed to investigate the usefulness of
such an expert necessarily fails.
Even if there was no indication in the record that
trial counsel was aware of this potential means of
defense, the petitioner’s claim nevertheless would fail
because ‘‘counsel is strongly presumed to have ren-
dered adequate assistance and [to have] made all signifi-
cant decisions in the exercise of reasonable profes-
sional judgment.’’ Strickland v. Washington, supra, 466
U.S. 690. The petitioner failed to overcome this pre-
sumption because he presented no evidence that his
trial counsel failed to investigate the usefulness of an
expert like Sgroi. Thus, we conclude that the petitioner
failed to prove that his trial counsel’s performance was
constitutionally deficient on the ground that counsel
failed to present expert testimony regarding the sug-
gestibility of young children and the reliability of a
child’s recollection.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the habeas court with direction to
deny the petitioner’s habeas petition.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of
victims of sexual assault and risk of injury to a child, we decline to use the
petitioner’s surname or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
2
We note that the Appellate Court initially affirmed the habeas court’s
judgment in Michael T. v. Commissioner of Correction, 122 Conn. App. 416,
425, 999 A.2d 818 (2010). This court subsequently reversed the Appellate
Court’s judgment and remanded the case to that court for further proceed-
ings. See Michael T. v. Commissioner of Correction, 307 Conn. 84, 104, 52
A.3d 655 (2012). On remand, the Appellate Court again affirmed the habeas
court’s judgment; Michael T. v. Commissioner of Correction, 144 Conn. App.
45, 62, 71 A.3d 660 (2013); and the respondent brought the present appeal.
3
‘‘Trichomonas is a parasitic protozoa that can infect the urinary tract or
prostate of males and the vagina or urinary tract of females.’’ (Internal
quotation marks omitted.) Michael T. v. Commissioner of Correction, 307
Conn. 84, 88 n.6, 52 A.3d 655 (2012).
4
Prior to filing his habeas petition, the petitioner appealed directly from
the judgment of conviction to the Appellate Court, which affirmed the judg-
ment of conviction. State v. Michael T., 97 Conn. App. 478, 490, 905 A.2d
670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006).
5
The petitioner also claims that we should not review the respondent’s
claims because certification was improvidently granted. The petitioner fails,
however, to cite Practice Book § 84-2, the controlling rule of practice with
respect to certification, and to explain why there are not ‘‘special and
important reasons’’ for allowing the respondent’s petition for certification
to appeal in the present case. Practice Book § 84-2. Moreover, the petitioner
acknowledges that the decision of whether to grant certification to appeal
in a particular case rests within this court’s sole discretion. We exercise that
discretion and determine that certification was not improvidently granted.
The petitioner further argues that we should not review the respondent’s
claims because the certified question does not accurately describe the issue
considered and decided by the Appellate Court. Specifically, the petitioner
claims that the Appellate Court focused on whether trial counsel should
have called an expert to testify regarding ‘‘the interviewing techniques used
and how they [gave] rise to psychological factors that can undermine reliabil-
ity,’’ rather than ‘‘the suggestibility of young children and the reliability of
a child’s recollection . . . .’’ (Internal quotation marks omitted.) We reject
the petitioner’s claim.
Regardless of the semantic differences between the Appellate Court’s
characterization of the issue and our characterization of it in the certified
question, the Appellate Court decided the same substantive issue. Import-
antly, the language of the certified question is nearly identical to the language
we used in remanding the case to the Appellate Court. Compare Michael
T. v. Commissioner of Correction, supra, 307 Conn. 103 (remanding for
consideration of whether ‘‘the petitioner’s trial counsel had provided ineffec-
tive assistance by failing to call an expert to testify to the suggestibility of
young children and the reliability of a child’s recollection one year after the
alleged event’’), with Michael T. v. Commissioner of Correction, supra,
310 Conn. 938 (‘‘[d]id the Appellate Court properly determine that defense
counsel provided ineffective assistance by failing to call an expert to testify
to the suggestibility of young children and the reliability of a child’s recollec-
tion one year after the alleged event’’). In any event, if the petitioner believed
that the certified question needed to be rephrased, he should have filed a
motion with this court urging us to rephrase the certified question before
the case was argued.
6
It appears that trial counsel confused Buckey v. Los Angeles, 968 F.2d
791 (9th Cir.), cert. denied sub nom. Manhattan Beach v. Buckey, 506 U.S.
999, 113 S. Ct. 599, 600, 121 L. Ed. 2d 536 (1992), the ‘‘McMartin case,’’ with
State v. Kelly, 118 N.C. App. 589, 456 S.E.2d 861, review denied, 341 N.C.
422, 461 S.E.2d 764 (1995), another case involving false allegations of sexual
abuse stemming from improper investigation techniques.
7
The petitioner asserts that we should not review this ‘‘claim’’ because
the respondent failed to raise it in the Appellate Court. According to the
petitioner, reviewing this claim would allow the respondent to ambush the
Appellate Court and the petitioner. See White v. Mazda Motor of America,
Inc., 313 Conn. 610, 619, 99 A.3d 1079 (2014) (‘‘[o]ur appellate courts, as a
general practice, will not review claims made for the first time on appeal’’).
Although we agree that the respondent did not make this specific argument
in the Appellate Court or in the habeas court, we disagree that we are
therefore precluded from considering it in the present appeal.
We properly can review the respondent’s argument because it is an argu-
ment, not a claim. ‘‘[W]e will not review a claim unless it was distinctly
raised at trial. . . . We may, however, review legal arguments that differ
from those raised before the trial court if they are subsumed within or
intertwined with arguments related to the legal claim raised at trial.’’ (Cita-
tions omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165,
203, 982 A.2d 620 (2009); see also State v. Fernando A., 294 Conn. 1, 116 n.32,
981 A.2d 427 (2009) (Palmer, J., dissenting in part) (‘‘Generally speaking, an
argument is a point or line of reasoning made in support of a particular
claim. Only claims are subject to our rules of preservation, not arguments.’’);
Rowe v. Superior Court, 289 Conn. 649, 663, 960 A.2d 256 (2008) (reviewing
theories not raised in trial court because ‘‘those theories [were] related to
a single legal claim’’); cf. Vine v. Zoning Board of Appeals, 281 Conn. 553,
569, 916 A.2d 5 (2007) (addressing alternative ground for affirmance that
was not raised at trial because, inter alia, issue was ‘‘closely intertwined’’
with certified question).
In the present case, the respondent’s argument that there was a strategic
reason not to call an expert is subsumed within the claim that the respondent
raised in the Appellate Court, namely, that the habeas court incorrectly
determined that the petitioner’s trial counsel rendered ineffective assistance
by failing to present expert testimony regarding the suggestibility of young
children and the reliability of a child’s recollection. See Michael T. v. Com-
missioner of Correction, supra, 144 Conn. App. 57. The respondent’s argu-
ment is closely intertwined with this claim because the question of whether
to call an expert witness always is a strategic decision. See Bryant v.
Commissioner of Correction, 290 Conn. 502, 521, 964 A.2d 1186 (‘‘the deci-
sion whether to call a particular witness falls into the realm of trial strategy’’),
cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175
L. Ed. 2d 242 (2009). In other words, the petitioner cannot claim that the
habeas court correctly determined that his trial counsel rendered ineffective
assistance on the ground that counsel failed to call an expert and then argue
that the respondent is barred from arguing whether there was good reason
for counsel not to call an expert.
Moreover, the petitioner cannot claim to have been ambushed by the
respondent’s argument that there was a strategic reason not to call an expert
like Sgroi. A party is ambushed ‘‘when that party is deprived of a fair chance
to defend a claim at the trial level and create a record for appeal.’’ State v.
Fernando A., supra, 294 Conn. 36 n.4 (Schaller, J., concurring and dis-
senting). Because the petitioner’s trial counsel died prior to the habeas trial
in the present case, the record for appeal with respect to whether counsel
had a strategic basis for not calling an expert was limited to the transcripts
of the petitioner’s criminal trial. Thus, because the petitioner could not
have added anything more to the record for purposes of contesting the
respondent’s argument that the petitioner’s trial counsel had a strategic
basis for not calling an expert, the petitioner was not ambushed, as he
asserts. Accordingly, we reject the petitioner’s claim that we cannot review
the respondent’s argument.
8
It is unfortunate that the respondent failed to fully avail herself of the
opportunity during the habeas trial to impeach Sgroi’s testimony on the
various points that the respondent makes on appeal to this court. Nonethe-
less, to the extent that the respondent’s arguments require commonsense
observations predicated on the existing record, we conclude that it is appro-
priate to address this matter at this stage of the proceedings rather than to
expose E to another trial when we are persuaded that it would yield the
same result. To the extent, however, that the respondent relies on evidence
that never was proffered at either the petitioner’s criminal trial or his habeas
trial to impeach Sgroi’s opinion, we do not rely on such evidence. Sgroi
could not have anticipated and therefore responded to such evidence, nor
could the petitioner have presented other evidence to rehabilitate Sgroi.
9
The petitioner also asserts in a lone sentence in his brief that ‘‘[t]he
claimed tactical decision [would] not [have been] reasonable even if the
investigation was adequate.’’ The petitioner, however, fails to elaborate at
all on this argument. In the very next sentence of his brief, the petitioner
returns to his inadequate investigation argument, stating that, ‘‘[a]bsent
adequate investigation, counsel could not make a reasonable decision
because he did not know what information an expert could have provided
as to the defects in the [video-recorded] interview.’’ It is clear from the
petitioner’s brief that he does not seriously dispute the fact that preventing
the admission of the prior consistent statement constituted a legitimate,
strategic reason not to offer the testimony of an expert.