Chase v. Commissioner of Correction

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RODNEY CHASE v. COMMISSIONER
OF CORRECTION
(AC 44048)
Moll, Suarez and Lavine, Js.
Syllabus
The petitioner, who had previously been convicted of sexual assault in the
first degree and risk of injury to a child, sought a writ of habeas corpus
claiming, inter alia, that his trial counsel had provided ineffective assis-
tance. Following a trial, the habeas court rendered judgment denying the
petition, concluding that trial counsel’s performance was not deficient.
Thereafter, the habeas court granted the petition for certification to
appeal, and the petitioner appealed to this court. Held that the habeas
court correctly concluded that the petitioner failed to prove that his
trial counsel’s performance was deficient: the habeas court reasonably
concluded that the petitioner did not overcome the presumption that
his trial counsel had familiarized himself with topics germane to child
sexual assault cases, as the petitioner failed to present credible evidence
that his counsel had failed to achieve a reasonable degree of familiarity
with various materials relevant to child forensic interview protocol,
disclosure literature and validation criteria; moreover, this court could
not second-guess on appeal the court’s credibility determinations regard-
ing trial counsel’s testimony that he had retained an expert, S, to assist
with the defense, and the petitioner did not overcome the presumption
that trial counsel’s decision regarding what topics to develop during the
examination of S and which topics to reserve for cross-examination of
the state’s expert witnesses was based on sound trial strategy.
Argued November 29, 2021—officially released February 8, 2022
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, Chaplin, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court. Affirmed.
J. Christopher Llinas, for the appellant (petitioner).
Linda F. Rubertone, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Rodney Chase, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, he
claims that the court incorrectly determined that he
received effective assistance of trial counsel. We dis-
agree and, accordingly, affirm the judgment of the
habeas court.
The following facts from the petitioner’s underlying
criminal conviction; see State v. Chase, 154 Conn. App.
337, 107 A.3d 460 (2014), cert. denied, 315 Conn. 925,
109 A.3d 922 (2015); and procedural history are relevant.
Between November, 2011, and March, 2012, the peti-
tioner was a houseguest in the home of M, his wife, R,
their daughter, Z, who was born in 2004, and their three
year old son.1 Id., 340, 364. One evening after Christmas,
2011, the petitioner sexually assaulted Z. Id., 340. The
petitioner moved out of Z’s home in March, 2012, and,
approximately three weeks later, Z disclosed the assault
to her parents. Id. The petitioner was charged with
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2), two counts of sexual assault
in the fourth degree in violation of General Statutes
§ 53a-73a (a) (1) (A), and risk of injury to a child in
violation of General Statutes § 53-21 (a) (2).
During the petitioner’s criminal trial, the state pre-
sented expert testimony from two forensic interview-
ers, Donna Meyer and Theresa Montelli. Meyer, who
had conducted a forensic interview of Z, testified
regarding the format and protocol used during forensic
interviews. Montelli testified, generally, concerning the
tendency of children to delay reporting incidents of
abuse, and explained that ‘‘there is almost always a
delay in disclosure’’ in child sexual assault cases for a
variety of reasons. The petitioner’s trial counsel, Attor-
ney Howard Gemeiner, presented the expert testimony
of Suzanne Sgroi, a medical doctor with a child sexual
abuse consulting practice who had reviewed the
records in the petitioner’s criminal case. On direct
examination, Sgroi explained that, in her opinion, Mey-
er’s forensic interview of Z was ‘‘very brief’’ and that
‘‘there were a great many things that should have been
asked that were not . . . .’’ She further testified that
certain aspects of the format of the interview, such as
a lack of instructions, including telling the child to be
truthful and not to guess, ‘‘could have had an influence
on what [Z] might say subsequently in any setting.’’ She
also testified that it is ‘‘very important’’ to obtain a
complete narrative of how the complainant came for-
ward to disclose the abuse in order to ‘‘elicit enough
details’’ to ‘‘make it a more credible kind of narrative’’
that ‘‘can be checked and verified,’’ but that there was
‘‘very little effort on the part of . . . Meyer to get any
of that additional detail.’’ Following a jury trial, the
petitioner was sentenced to a total effective sentence
of ten years of incarceration and ten years of special
parole for his conviction of sexual assault in the first
degree in violation of § 53a-70 (a) (2) and risk of injury
to a child in violation of § 53-21 (a) (2).2
In 2018, the petitioner filed the operative amended
petition for a writ of habeas corpus in which he alleged,
inter alia, ineffective assistance of trial counsel for Gem-
einer’s failure to familiarize himself with the issue of
disclosure in child sexual assault cases, the failure to
cross-examine certain state’s witnesses adequately, and
the failure to consult with or to present an expert wit-
ness on the validity of claims of child sexual abuse. In
its return, the respondent, the Commissioner of Correc-
tion, denied the allegations of ineffectiveness. Follow-
ing trial, the habeas court issued a memorandum of
decision denying the petition for a writ of habeas corpus
and concluding that the petitioner had not demon-
strated that Gemeiner’s performance was deficient.
Having so concluded, the court did not reach the ques-
tion of whether the petitioner was prejudiced by Gem-
einer’s performance. The petitioner filed a petition for
certification to appeal, which the court granted. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. . . . As enunciated in Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)] . . . [i]t is axiomatic that the right
to counsel is the right to the effective assistance of
counsel. . . . A claim of ineffective assistance of coun-
sel 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. . . .
Because both prongs of Strickland must be demon-
strated for the petitioner to prevail, failure to prove
either prong is fatal to an ineffective assistance claim.’’
(Citations omitted; internal quotation marks omitted.)
Llera v. Commissioner of Correction, 156 Conn. App.
421, 426–27, 114 A.3d 178, cert. denied, 317 Conn. 907,
114 A.3d 1222 (2015).
‘‘[J]udicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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 presump-
tion 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. . . . In reconstructing the
circumstances, a reviewing court is required not simply
to give [the trial attorney] the benefit of the doubt . . .
but to affirmatively entertain the range of possible rea-
sons . . . counsel may have had for proceeding as [he]
did . . . .’’ (Internal quotation marks omitted.) Cancel
v. Commissioner of Correction, 189 Conn. App. 667,
693, 208 A.3d 1256, cert. denied, 332 Conn. 908, 209 A.3d
644 (2019). ‘‘[S]trategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable . . . .’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 680, 51 A.3d 948 (2012).
‘‘[T]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the
same way.’’ (Internal quotation marks omitted.) Mele-
trich v. Commissioner of Correction, 332 Conn. 615,
637, 212 A.3d 678 (2019).
The crux of the petitioner’s argument on appeal is
that Gemeiner failed in a number of ways to undermine
Z’s version of events by relying on the undisputed fact
that Z did not disclose the alleged sexual abuse until
approximately three weeks after it allegedly occurred.
The petitioner concludes that, had Gemeiner put more
emphasis on this delay, the jury would have concluded
that the delay in disclosure was an indication that the
incident never occurred. As we consider the petitioner’s
arguments, we recognize that our courts have permitted
expert testimony to be admitted in sexual assault cases
to explain why delayed disclosure does not necessarily
and inexorably lead to the conclusion that a sexual
assault did not occur. ‘‘Because it is only natural for a
jury to discount the credibility of a victim who did not
immediately report alleged incidents . . . testimony
that explains to the jury why a minor victim of sexual
abuse might delay in reporting the incidents of abuse
should be allowed as part of the state’s case-in-chief.’’
(Internal quotation marks omitted.) State v. Francis D.,
75 Conn. App. 1, 16, 815 A.2d 191, cert. denied, 263
Conn. 909, 819 A.2d 842 (2003).
The petitioner argues that the court erred in finding
that Gemeiner’s performance was based on sound trial
strategy because there was no evidence in the record
to demonstrate that he had a legitimate strategic reason
for (1) failing to familiarize himself with the issue of
delayed disclosure, (2) failing to consult with or to
present an expert witness on the issue of delayed disclo-
sure, or (3) failing to cross-examine the state’s expert
witness, Montelli, adequately on the issue of delayed
disclosure and that his cross-examination of her was
‘‘unfocused, disorganized, and rambling . . . .’’ He con-
tends that Gemeiner testified at the habeas trial that
he did not believe that the issue of delayed disclosure
mattered in the petitioner’s case, despite the fact that
the state considered the issue to be so central that it
presented expert testimony from Montelli on the sub-
ject of delayed disclosure of sexual abuse by children
and, particularly, the fact that delayed disclosure was
not necessarily evidence of untruthful disclosure. We
are not persuaded.
We begin by setting forth our standard of review. ‘‘It
is well settled that in reviewing the denial of a habeas
petition alleging the ineffective assistance of counsel,
[t]his 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 constitutes a violation of the petitioner’s
constitutional right to effective assistance of counsel
is plenary.’’ (Internal quotation marks omitted.) Brewer
v. Commissioner of Correction, 189 Conn. App. 556,
562, 208 A.3d 314, cert. denied, 332 Conn. 903, 208 A.3d
659 (2019).
In the present case, the court rejected the petitioner’s
argument that Gemeiner failed to familiarize himself
with the issue of delayed disclosure. It found that the
petitioner failed to present credible evidence to demon-
strate that Gemeiner had failed to achieve a reasonable
degree of familiarity with materials relevant to child
forensic interview protocol, disclosure literature, and
validation criteria in preparation for the petitioner’s
criminal trial. The court noted that Gemeiner testified
that he had significant experience with child sexual
assault cases and that he ‘‘tried to read all materials on
testing the veracity of children—beyond newspapers
and magazines.’’ (Internal quotation marks omitted.)
Gemeiner also testified that he was ‘‘fairly consumed’’
with researching the issue of testing the veracity of
children in sexual assault cases and that he had con-
sulted with and retained Sgroi. He also explained that
he ‘‘didn’t see anything in the time frame that was prob-
lematic’’ and that it did not matter whether the delay
in disclosure was one day or four months. In his opinion,
the problem was not the timing of the disclosure but
rather that ‘‘there was no way to prove that [the peti-
tioner] didn’t have access to the child,’’ because he was
living in the home and had access to Z during the time of
the alleged abuse. Even the testimony of the petitioner’s
expert at the habeas trial, Nancy Eiswirth, a clinical
psychologist who had reviewed the trial testimony of
Montelli and who had watched the video recording of
Montelli’s forensic interview of Z, highlighted concerns
with a delayed disclosure defense. She testified that
there is no association between a child’s delayed disclo-
sure of sexual abuse and her veracity and further stated
that, because there is no definition of delayed disclo-
sure, research on the topic is ‘‘questionable’’ and has
‘‘looked at everything from one day to years and years
and years later.’’ The court reasonably concluded that
the petitioner had not overcome the presumption that
Gemeiner’s had familiarized himself with topics ger-
mane to child sexual assault cases.
Regarding the petitioner’s argument that Gemeiner
failed to consult with or to present an expert witness
on the issue of delayed disclosure, the court found that
Gemeiner credibly testified that he had retained Sgroi
to help develop a theory of defense and concluded that
he presented the testimony of Sgroi at the criminal trial
to rebut the testimony and opinions provided by the
state’s expert witnesses. Gemeiner testified at the
habeas trial that he thought it was ‘‘imperative’’ to have
an expert in the petitioner’s case, and that he met with
and delivered the case materials to Sgroi to review prior
to trial. As noted by the habeas court, Gemeiner’s typical
practice when speaking with experts in criminal cases
was to review all items in detail so as not to assume
anything about the potential evidence. We cannot sec-
ond-guess on appeal the court’s credibility determina-
tions regarding Gemeiner’s testimony that he had
retained Sgroi to assist with the defense. ‘‘The 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. . . . Appellate courts do not second-
guess the trier of fact with respect to credibility. . . .
It is simply not the role of this court on appeal to second-
guess credibility determinations made by the habeas
court.’’ (Internal quotation marks omitted.) Budziszew-
ski v. Connecticut Judicial Branch, 199 Conn. App.
518, 530, 237 A.3d 792, cert. denied, 335 Conn. 965, 240
A.3d 283 (2020).
Beyond crediting as true Gemeiner’s testimony con-
cerning his preparation for the trial, the court found
that Gemeiner made a sound strategic decision at trial
not to question Sgroi regarding delayed disclosure but
rather to address the topic through cross-examination
of the state’s expert witness, Montelli. On cross-exami-
nation, Gemeiner questioned Montelli regarding whether
there was a link between delayed disclosure and a
child’s veracity. Montelli testified: ‘‘I don’t think one
has to do with the other,’’ but that she could not speak
to the issue of credibility and that ‘‘[i]t’s really up to
the child’s statement and hearing from the child the
reasons why they delay.’’ As the court aptly stated, the
transcripts of the underlying criminal trial make clear
that Gemeiner used Sgroi’s testimony to rebut the testi-
mony of the state’s expert witnesses, namely, to opine
on the faults in Meyer’s technique in conducting the
forensic interview of Z. The petitioner has not overcome
the presumption that Gemeiner’s decision regarding
what topics to develop during the examination of Sgroi
and which topics to reserve for cross-examination of
the state’s expert witnesses was based on sound trial
strategy. ‘‘Once an attorney makes an informed, strate-
gic decision regarding how to cross-examine a witness,
that decision is virtually unchallengeable.’’ (Internal
quotation marks omitted.) Taft v. Commissioner of
Correction, 159 Conn. App. 537, 557, 124 A.3d 1, cert.
denied, 320 Conn. 910, 128 A.3d 954 (2015). ‘‘An attor-
ney’s line of questioning on examination of a witness
clearly is tactical in nature. [As such, this] court will
not, in hindsight, second-guess counsel’s trial strategy.
. . . The fact that counsel arguably could have inquired
more deeply into certain areas, or failed to inquire at
all into areas of claimed importance, falls short of estab-
lishing deficient performance.’’ (Internal quotation
marks omitted.) Ruiz v. Commissioner of Correction,
195 Conn. App. 847, 861, 227 A.3d 1049, cert. denied,
335 Conn. 915, 229 A.3d 729 (2020). Accordingly, after
reviewing the record of both the trial and habeas pro-
ceedings, we conclude that the petitioner has failed to
overcome the presumption that trial counsel’s examina-
tion of Sgroi and cross-examination of Montelli repre-
sented a sound trial strategy.
Having carefully reviewed the issues raised by the
petitioner, we conclude that the habeas court did not
err when it concluded that the petitioner failed to prove
that Gemeiner performed deficiently.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity might
be ascertained. See General Statutes § 54-86e.
2
The petitioner was also found guilty of two counts of sexual assault in
the fourth degree in violation of § 53a-73a (a) (1) (A), but the court vacated
the jury’s verdicts on those two counts due to an error in the jury instructions.