Ricardo R. v. Commissioner of Correction

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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.