Chase v. Comm'r of Corr.

210 Conn.App. 492

270 A.3d 199

Rodney CHASE

v.COMMISSIONER OF CORRECTION

AC 44048

Appellate Court of Connecticut.

Argued November 29, 2021

Officially released February 8, 2022

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).

Moll, Suarez and Lavine, Js.

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 disagree 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 petitioner 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., at 340, 364, 107 A.3d 460. One evening after Christmas, 2011, the petitioner sexually assaulted Z. Id., at 340, 107 A.3d 460. 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 presented expert testimony from two forensic interviewers, 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, Attorney 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, Meyer'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 forward 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 Gemeiner'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 witness on the validity of claims of child sexual abuse. In its return, the respondent, the Commissioner of Correction, denied the allegations of ineffectiveness. Following 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 demonstrated that Gemeiner's performance was deficient. Having so concluded, the court did not reach the question of whether the petitioner was prejudiced by Gemeiner's performance. The petitioner filed a petition for certification to appeal, which the court granted. This appeal followed. Additional facts and procedural history 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 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. ... Because both prongs of Strickland must be demonstrated 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 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered 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 reasons ... 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 assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Internal quotation marks omitted.) Meletrich 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 at least 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 disclosure, 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 contends 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 subject of delayed disclosure of sexual abuse by children and, particularly, the fact that delayed disclosure was not necessarily evidence of untruthful disclosure. We...