Michael T. v. Comm'r of Corr.

• Decision Date: 28 September 2012
• Docket Number: No. 18676.,18676.
• Citation: 307 Conn. 84,52 A.3d 655
• Court: Connecticut Supreme Court
• Parties: MICHAEL T. v. COMMISSIONER OF CORRECTION.

307 Conn. 84

52 A.3d 655

MICHAEL T.^*

v.COMMISSIONER OF CORRECTION.

No. 18676.

Supreme Court of Connecticut.

Argued Feb. 10, 2012.

Decided Sept. 28, 2012.^**

Frederick W. Fawcett, special assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Cornelius P. Kelly, senior assistant state's attorney, and Gerard P. Eisenman, former senior assistant state's attorney, for the appellant (respondent).

Temmy Ann Pieszak, chief of habeas corpus services, for the appellee (petitioner).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^***

EVELEIGH, J.

The respondent, the commissioner of correction,¹ appeals ² from the judgment of the Appellate Court, which affirmed the judgment of the habeas court granting, in part, the amended petition of the petitioner, Michael T., for a writ of habeas corpus on the ground that his trial counsel had rendered ineffective assistance by failing, inter alia, to present expert testimony to challenge the state's presentation of incriminatory expert evidence on medical issues relating to the child victim's symptomatology.The dispositive issue in this appeal is whether failure of the petitioner's trial counsel to present expert evidence on this subject constituted deficient representation under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for assessing ineffective assistance of counsel claims pursuant to the sixth amendment to the United States constitution. We conclude that the petitioner was not prejudiced by any alleged deficient performance of trial counsel and, accordingly, we reverse the judgment of the Appellate Court and remand the case to that court to consider the remaining issue that it did not reach.³

On February 9, 2007, the petitioner filed an amended three count petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel and actual innocencewith respect to his conviction of sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a–70 (a)(2), ⁴ and risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53–21(a)(2).⁵ The respondent filed a denial and a special defense alleging that the petitioner had procedurally defaulted by failing to pursue his claim of ineffective assistance of counsel in a previous petition for a writ of habeas corpus. After an evidentiary hearing, the habeas court rejected the respondent's special defense and the petitioner's claim of actual innocence, but granted the petition with respect to his allegation of ineffective assistance of trial counsel. The habeas court found that the petitioner's trial counsel had been ineffective in failing to present expert testimony to challenge both the state's presentation of incriminatory expert evidence on medical issues relating to the child's symtomatology and psychological issues relating to the child's credibility. The habeas court concluded that trial counsel's failure to present such expert evidence had been prejudicial to the petitioner and rendered judgment in favor of the petitioner. The respondent appealed to the Appellate Court. The Appellate Court affirmed the judgment of the habeas court insofar as it rested on trial counsel's failure to challenge effectively the state's inculpatory medical testimony. Michael T. v. Commissioner of Correction, 122 Conn.App. 416, 417–18, 999 A.2d 818 (2010). This appeal followed.

The factual basis for the criminal judgment against the petitioner is described in the opinion of the AppellateCourt affirming the habeas court's judgment. Id., at 418–20, 999 A.2d 818. “In 2002, when the child was four years old, she was living at home with her mother, her older brothers and the petitioner. At the end of May, 2002, after the child complained of vaginal pain, her mother took her to a clinic in Bridgeport, where testing disclosed that the child was infected with trichomonas.⁶ ...

“Because the pediatric clinic nurse who assisted in the examination suspected that the child had been sexually abused, she properly reported the incident to the department of children and families (department). When subsequently questioned by a departmental investigative social worker assigned to the case, the child stated that no one had ever touched her private parts. A subsequent inquiry by a pediatric nurse practitioner affiliated with the child sexual abuse evaluation program at Yale–New Haven Hospital elicited the same response, that nothing had happened to her....

“In light of the child's infection, everyone in the child's family was asked to be tested for trichomonas. Only the child's mother tested positive for the disease. The petitioner, who had moved out of the family home in the interim, did not keep a scheduled appointment for testing....

“Approximately one year later, after attending a ‘good touch-bad touch’ presentation in her kindergarten class, the child told her mother that the petitioner had touched her inappropriately. She testified to the same effect at his trial....

“At the criminal trial, the state presented expert witnesses on two subjects, trichomonas and the reliability of children's statements. Four expert witnesses who were questioned about trichomonas testified that it was a condition that was sexually transmitted.⁷ To explain the delay in the child's reporting that someone had touched her inappropriately, an expert witness who was a school psychologist and forensic interviewer testified that, because a four year old child could not be expected to have knowledge of sexual activity, she would not know that she had been abused until she learned what abuse was.... Trial counsel challenged this expert testimony only by cross-examination of the state's witnesses.

“The petitioner was the only defense witness to testify at his trial. He denied having sexually abused the child. Defense counsel, in his closing argument to the jury, argued for acquittal either because trichomonas could be transmitted nonsexually or because the state had not proven penetration. The jury found the petitioner guilty of sexual assault in the first degree and risk of injury to a child.” (Citations omitted.) Id.

The opinion of the Appellate Court sets forth the following additional facts and procedural history relevant to the habeas trial. “The principal witness at the habeas hearing was Suzanne M. Sgroi, a physician who is an adjunct professor at St. Joseph College in West Hartford, the director of the St. Joseph College Institute for Child Sexual Abuse Intervention for the treatment of child sexual abuse and the executive director of New England Clinical Associates, an organization that works with child abuse trauma.... Sgroi testified that the child had had urinary-vaginal symptomology at least eight months prior to being diagnosed with trichomonas. Contrary to the state's expert testimony at trial linking trichomonas to sexual abuse, she stated that a child could have contracted such an infection by ‘living in the same home with somebody who had the infection, who wasn't all that careful about hygiene, perhaps because of not being careful about laundering towels or having community towels in the bathroom, perhaps because of washing the child in bath water already used by adults and the like.’ She further testified that guidelines published by the American Academy of Pediatrics do not include trichomonas as a disease that is diagnostic of sexual abuse....

“In addition to relying on Sgroi's testimony, the habeas court also found persuasive the testimony of attorney Michael Blanchard about the use of expert witnesses to assist the defense in a criminal trial. Blanchard testified that the proper preparation for a criminal trial involving charges of sexually assaulting a minor, in particular when the defendant denies the charges and will proceed to trial, necessitates the utilization of an expert witness both for trial preparation and during the trial itself. In his view, such required evidence was exemplified by Sgroi's testimony describing nonsexual modes of transmitting trichomonas and challenging the manner in which the child had been interviewed....

“The [habeas] court faulted trial counsel for failing to utilize a subject matter expert during the criminal trial to inform the jury about issues relating to the transmission of trichomonas and the reliability of the belated disclosure of an assault by the child.” Id., at 420–22, 999 A.2d 818. A majority of the Appellate Court agreed.⁸ Additional facts will be set forth as necessary.

We begin by setting forth the standard of review applicable to the respondent's appeal. “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.” (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936 A.2d 611 (2007). The application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice under Strickland, however, is a mixed question of law and fact subject to our plenary review. See, e.g., Copas v. Commissioner of Correction, 234 Conn. 139, 152–53, 662 A.2d 718 (1995); see also Strickland v. Washington, supra, 466 U.S. at 698, 104 S.Ct. 2052.

“As enunciated in Strickland v. Washington [supra, 466 U.S. at 687, 104 S.Ct. 2052], ... [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have...