Michael T. v. Comm'r of Corr.

• Decision Date: 24 November 2015
• Docket Number: No. 19229.,19229.
• Citation: 126 A.3d 558,319 Conn. 623
• Court: Connecticut Supreme Court
• Parties: MICHAEL T. v. COMMISSIONER OF CORRECTION.

319 Conn. 623

126 A.3d 558

MICHAEL T.

v.COMMISSIONER OF CORRECTION.

No. 19229.

Supreme Court of Connecticut.

Argued April 28, 2015.

Decided Nov. 24, 2015.

Adam E. Mattei, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, 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).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

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 convicted 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 Appellate 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 respondent, 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 unreasonable, the error was harmless. We conclude that counsel'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., at 48–50, 71 A.3d 660 ; 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 trichomonas,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 Department 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 counsel had rendered ineffective assistance in failing to present 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 investigation 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 interviewing." Id., at 51, 71 A.3d 660. "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 information that enhances the credibility of their reports. Sgroi further testified that [E had] ... difficulties with verbal comprehension, speech, and positions and spatial relations [which] tended to make her a less competent 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 omitted.) Id., at 51–52, 71 A.3d 660. "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 contained in [E's] report of sexual abuse." Id., at 54, 71 A.3d 660.

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 witnesses 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 petitioner 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 petitioner's trial counsel had failed to present expert testimony regarding medical issues relating to trichomonas without addressing the issue of counsel's failure to present expert testimony regarding the reliability of the disclosure of sexual abuse by children. Michael T. v. Commissioner 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 recollection 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 rendered 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. at 47, 62, 71 A.3d 660. 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 ineffective 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) presenting 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 deficient 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 counsel 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 petitioner failed to prove his ineffective assistance claim.

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