Michael T. v. Commissioner of Correction

The sole issue in this certified appeal is whether counsel representingthe 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 reliabilityoftheirrecollections.Thepetitionerwasconvicted 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 concludedthatthepetitioner’sconvictionwasobtained inviolationofhisrighttoeffectiveassistanceofcounsel 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 fromthejudgmentoftheAppellateCourt,claimingthat the failure of the petitioner’s trial counsel to present expert testimony was objectively reasonable because there was a strategic justification for not presenting suchtestimony,and,eveniftheomissionwasunreasonable, 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., 48–50; which we briefly summarize. In 2002, the victim, E, was four years old when she complained to her motherofvaginalpain.Ewasdiagnosedwithtrichomonas,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 forensicinterviewerandsocialworkerfromtheDepartmentofChildrenandFamilies(department),butdenied 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 ofhabeas corpus,alleging, interalia, thathistrial 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,inordertorebutthestate’sexperttestimony 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. Atthehabeashearing,Sgroitestified‘‘thattherewere 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., 51. ‘‘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 barriersforprovidingthedetailedandcontextualinformation 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 interviewapproaches.’’(Internalquotationmarksomitted.) Id., 51–52. ‘‘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 failedtoaddressandresolveseveralcontradictionscontained in [E’s] report of sexual abuse.’’ Id., 54. Blanchard testified that, in a case involving sexual abuseallegationssuchasthepresentcase,areasonable 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 ineffectiveassistance,andthecourtgrantedthepetition 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 hadfailed 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 disclosureofsexualabusebychildren.MichaelT.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 ofyoungchildrenandthereliabilityofachild’srecollection 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. 47, 62. 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 tothesuggestibilityofyoungchildrenandthereliability 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 recordreveals 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 beenanoveltactic.The respondentfurtherclaimsthat, eveniftrialcounsel’sperformancewasconstitutionally deficient,thepetitionerwasnotprejudicedbythatdeficientperformancebecausecounsel,incross-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 coun

sel would have known that an expert would have been helpfultothepetitioner’sdefense,and(2)thepetitioner 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 wasobjectivelyreasonableand,therefore,thatthepetitioner failed to prove his ineffective assistance claim. Before analyzing the respondent’s claims, we set forth the applicable standard of review and the law governing ineffective assistance of counsel claims. ‘‘When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] adefendantreceivedattrialwasconstitutionallyinadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfetteredbytheclearlyerroneousstandard.’’(Citation omitted; internal quotation marks omitted.) Rodriguez v. Commissioner of Correction, 312 Conn. 345, 351–52, 92 A.3d 944 (2014). ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the right to the effective assistanceofcounsel.’’(Citationsomitted;internalquotation marks omitted.) Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, U.S. , 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013). ‘‘As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] . . . [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . thepetitionermustdemonstrate thathisattorney’srepresentation 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 been different. . . . A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong . . . .’’ (Citation omitted; internal quotation marks omitted.) Michael T. v. Commissioner of Correction, supra, 307 Conn. 91. WithrespecttotheperformanceprongofStrickland, we are mindful that ‘‘[j]udicial scrutiny of counsel’s

performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particularactoromissionofcounselwasunreasonable. . . . 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . There 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.’’ (Citations omitted; emphasis added; internal quotation marks omitted.)Stricklandv.Washington,supra,466U.S.689. Similarly, the United States Supreme Court has emphasized that a reviewingcourt 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 . . . .’’ (Citations omitted; internal quotation marks omitted.) Cullen v. Pinholster, U.S. , 131 S. Ct. 1388, 1407, 179 L. Ed. 2d 557 (2011). ‘‘[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.) Gaines v. Commissioner of Correction, 306 Conn. 664, 680, 51 A.3d 948 (2012). Turningtothepresentcase,wefirstapplytheperformance prong of the Strickland test and consider whether counsel’s failure to call an expert to testify regarding the suggestibility of young children and the reliability of a child’s recollection was objectively reasonable. The respondent claims that this omission was objectively reasonable because there was a strategic reason not to offer such expert testimony, namely, to prevent the state from offering a prior consistent statement made by E, especially when counsel could effectively ‘‘advanc[e] the issue of suggestibility through cross-examination . . . .’’ We note that the respondent’sclaimappearstobepremisedoncertainassumptions. First, it assumes that the video recording of the second forensic interview, which occurred subsequent to E’s disclosure to her mother and in which E made some statements that were inconsistent with or

extended beyond the trial testimony, would have been admissible as a prior consistent statement. See Conn. Code Evid. § 6-11 (addressing limits on admissibility of prior consistent statements). Second, it assumes that anyexpertopinionevidencethatservedtoimpeachthe reliabilityofE’sdisclosurewouldhaveprovidedabasis to admit the video recording, whereas elicitation of comparableevidence throughcross-examination ofthe state’s witnesses would not have provided a basis for its admission. In the absence of any challenge to these assumptions by the petitioner, we accept them in analyzingtherespondent’sclaim.Thus,thequestionbefore usisnotmerelywhetherreasonablecounselcouldhave concluded that the second forensic interview, on balance, was more damaging than helpful to the defense. Instead, the question is whether reasonable counsel could have concluded that the benefit of presenting expert opinion regarding the reliability of E’s delayed disclosure of abuse was outweighed by any damaging effect of the video-recorded interview in light of other means to impeach that disclosure. To resolve this claim, we first must set forth the following additional facts regarding the petitioner’s criminal trial. At that trial, the state called Lisa MelilloBush, a school psychologist and forensic interviewer, as an expert to testify regarding delayed disclosures of sexual abuse by children. On cross-examination, the petitioner’s trial counsel asked Melillo-Bush whether she was familiar with the ‘‘McMartin case,’’ a case in which the mishandling of an investigation into allegations of a preschool teacher’s alleged sexual abuse of students caused numerous children to fabricate their allegations.6 See generally Buckey v. Los Angeles, 968 F.2d 791 (9th Cir.), cert. denied sub nom. Manhattan Beach v. Buckey, 506 U.S. 999, 113 S. Ct. 599, 600, 121 L.Ed.2d536(1992).Theseniorassistantstate’sattorney (prosecutor) objected, and, outside the presence of the jury, the petitioner’s counsel explained that he was attemptingtoaskMelillo-Bush‘‘aboutasituationwhere kids can feed off hysteria or suggestion . . . .’’ The prosecutor responded that, ‘‘[i]f we go down that road, I’m going to ask that the [video recording of E’s second forensic interview] be introduced [as a prior consistent statement]. [Counsel] is making the claim that children are susceptible to suggestion . . . .’’ At that point, the petitioner’scounselstatedthathewouldnolongerpursue that line of questioning. The respondent argues that this exchange demonstrates that, if the petitioner’s counsel had called an expert like Sgroi to cast doubt on the reliability of E’s disclosure, the state would have offered the video recording of the second forensic interview of E as a prior consistent statement. Preventing this from happening,therespondentargues,isareasonablestrategic basis for not presenting expert testimony such as Sgroi’s.7 We agree.

Preventing the jury from watching the video recording of E’s prior consistent statement constitutes a reasonable strategic basis for declining to call an expert witness like Sgroi because it would have been damaging to the petitioner’s defense. Specifically, the video recording would have buttressed E’s credibility because her disclosure to the forensic interviewer was consistent with her trial testimony. See Conn. Code Evid. § 6-11 (b) (purpose of prior consistent statement is to rebut impeachment of witness’ credibility). Moreover, during the second forensic interview, E disclosed details about the abuse that she had not disclosed during hertestimony, includingthat thepetitioner hadtold her to ‘‘shut up’’ and had called her a ‘‘bitch,’’ that the petitioner had threatened to hurt E if she disclosed the abuse, and that she had been wearing her ‘‘Christmas clothes’’ that her ‘‘Nana’’ had given her when the petitioner sexually abused her. A reasonable defense attorney understandably would not have wanted the jury to hear this evidence because it would have generated sympathy for E, cast the petitioner in an unfavorable light, and added details to the sexual abuse, thereby bolstering E’s credibility. In addition, its admission would have provided a second explanation for E’s delayed disclosure that was consistent with other evidence in the case, namely, that the earlier denials were made out of fear that the petitioner would harm her. The petitioner resided in the household before E disclosed the abuse to her mother but had left by the time she did disclose it. With respect to the other side of the equation, we are mindful that the habeas court found Sgroi, who testified as to both the possibility of nonsexual transmissionoftrichomonasandtheproblemswiththeinterview methods, to be ‘‘highly credible.’’ Nonetheless, we conclude that, in making a tactical decision whether to proffer expert testimony, reasonable counsel would have recognized that Sgroi’s opinion would have been vulnerable to attack on various grounds.8 For example, Sgroi deemed the most significant contamination to have occurred in the circumstances under which E had disclosed the abuse to her mother following the school presentation on inappropriate touching. Sgroi found it very pertinent that the application for the petitioner’s arrest warrant and the investigative interview report both inaccurately reflected that E had spontaneously disclosed the abuse to her mother after the presentation, a factor thatwould have suggested reliability. Neither the application nor the report, however, was introducedatthepetitioner’scriminaltrial;nordidanyone attest to that fact during the trial. Sgroi also found it extremely significant that E’s mother had testified that she added in words that E left out, specifically ‘‘private areas,’’ when E disclosed what the petitioner had done. The application for the arrest warrant, however, included what appeared to be direct quotations

of E’s statement to her mother in which E is reported tohavesaidthatthepetitioner‘‘puthisthing-thingdown there’’;(emphasisadded;internalquotationmarksomitted);insteadofnamingherbodypartorreferringgenericallytoherprivateparts.Ifthepetitioner’strialcounsel had attempted to exploit the mother’s addition of ‘‘private areas’’ to E’s disclosure, presumably the state would have elicited evidence to clarify the circumstances. We therefore conclude that there was a legitimate, strategicreasonnottocallanexpertlikeSgroiandthat trial counsel’s performance was not constitutionally deficient.See,e.g., Williamsonv. Moore,221F.3d1177, 1181 (11th Cir. 2000) (trial counsel’s performance was not unreasonable when counsel declined to present testimonyofcertainwitnessesbecause,iftheyhadtestified, ‘‘conflicting hurtful evidence most likely would also have been brought out’’), cert. denied, 534 U.S. 903, 122 S. Ct. 234, 151 L. Ed. 2d 168 (2001); Antonio A. v. Commissioner of Correction, 148 Conn. App. 825, 831, 87 A.3d 600 (trial counsel’s performance was not unreasonable when counsel declined to cross-examine witness on certain subject matter because, if counsel had done so, damaging forensic interview of child victim may have been introduced into evidence), cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). Accordingly, we need not consider the respondent’s additional reasons why trial counsel provided adequate assistance or address the prejudice prong of the Strickland test. The petitioner does not dispute that the video recording of E’s second forensic interview would have been damaging to his case or that preventing the state fromofferingitconstitutedareasonable,strategicbasis fornotpresentingthetestimonyofanexpertlikeSgroi. Instead, the petitioner claims that his trial counsel’s failure to call an expert could not have been a reasonable tactical decision because counsel failed to investigate the usefulness of such an expert. According to the petitioner, ‘‘the habeas court found [that] trial counsel had failed to investigate the utility of an expert’’ and ‘‘found [that] trial counsel elected not to use an expert even as an advisor.’’The petitioner claims that, without consultinganexpert,counselcouldnotreasonablyhave decided whether offering the testimony of such an expert would have been useful to the petitioner’s defense.9 The petitioner’s claim has no merit. As an initial matter, the premise of the petitioner’s claim is incorrect; the habeas court did not make a findingthatthepetitioner’strialcounselfailedtoinvestigate the utility of an expert. Instead, the habeas court found that ‘‘[t]here [was] no evidence aside from [the] petitioner’s scant testimony regarding [his trial counsel’s] pretrial and investigative efforts,’’ leaving the habeas court ‘‘in the untenable position of speculating as towhat [counsel]exactly didas part ofhis investiga

tion.’’ This led the habeas court to conclude that it was ‘‘unable to address the [petitioner’s] claims attacking [counsel’s] pretrial and investigative efforts in any meaningful way.’’ Thus, the petitioner’s claim concerning counsel’s failure to investigate has no factual basis. It is possible that trial counsel thoroughly investigated whetheritwouldhavebeenusefultoofferthetestimony of an expert or even that he consulted with one. We do not know, however, because, as the habeas court observed, the petitioner failed to present any evidence regarding trial counsel’s pretrial and investigative efforts. What we do know from the record indicates that, contrary to the petitioner’s claim, trial counsel knew that eliciting testimony regarding the suggestibility of young children was a viable means of impeaching E. Indeed, the petitioner’s counsel indicated to the trial courtthathehadaskedMelillo-Bushaboutthe‘‘McMartin case’’ because that was a case in which children were influenced by the suggestions of adults. Also, immediatelyprecedingcounsel’squestionregardingthe McMartin case, he asked Melillo-Bush, ‘‘[i]sn’t it a fact that kids especially that age . . . four to five years old . . . want to please adults very much . . . [and] are very receptive to suggestions . . . ?’’ Thus, it is clear from counsel’s cross-examination of Melillo-Bush that heknewofthephenomenonofchildrenbeingsusceptible to suggestion and that experts have opinions on that subject matter. Accordingly, the petitioner’s claim that trial counsel failed to investigate the usefulness of such an expert necessarily fails. Even if there was no indication in the record that trial counsel was aware of this potential means of defense, the petitioner’s claim nevertheless would fail because ‘‘counsel is strongly presumed to have renderedadequateassistanceand[tohave]madeallsignificant decisions in the exercise of reasonable professionaljudgment.’’ Strickland v. Washington, supra,466 U.S. 690. The petitioner failed to overcome this presumption because he presented no evidence that his trial counsel failed to investigate the usefulness of an expert like Sgroi. Thus, we conclude that the petitioner failed to prove that his trial counsel’s performance was constitutionally deficient on the ground that counsel failed to present expert testimony regarding the suggestibility of young children and the reliability of a child’s recollection.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the habeas court with direction to deny the petitioner’s habeas petition.