Opinion
CV154007585S
01-22-2020
Rodney Chase (Inmate #390667) v. Warden, State Prison
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Chaplin, Courtney M., J.
MEMORANDUM OF DECISION
Hon. Courtney M. Chaplin, J.
The petitioner, Rodney Chase, filed this petition for a writ of habeas corpus seeking relief for alleged ineffective assistance of trial counsel on October 7, 2015. The petitioner, through counsel, filed the operative petition (Second Amended Petition) on October 16, 2018. The respondent filed its return on November 20, 2018. The petitioner filed a reply to the return on January 30, 2019. The court held a trial for this matter on September 26, 2019. At trial, the petitioner presented the testimony of Dr. Nancy Eiswirth and Attorney Howard Gemeiner. The petitioner submitted one flash drive that included three (3) transcripts from the underlying criminal case, a redacted transcript of the forensic interview, the Appellate Court decision, the certified criminal file, the criminal trial exhibit list and the revised judgment mittimus. The respondent did not present any witnesses or exhibits. The court heard closing argument.
In the underlying criminal matter, the petitioner was arrested on June 1, 2012, and subsequently charged with sexual assault in the first degree, General Statutes § 53a-70(a)(2); two counts of sexual assault in the fourth degree, General Statutes § 53a-73a(a)(1)(A); and risk of injury to a minor, General Statutes § 53-21(a)(2). "The matter was tried over the course of three days in June 2013, during which the jury reasonably could have found the following facts. Between November 2011, and March 2012, the defendant was a houseguest in the home of M.R. and his wife, R.N. M.R. and R.N.’s daughter, Z., the victim, and their three-year-old son, M. Jr., also lived in the home. One evening after Christmas, 2011, the defendant was lying on a couch in the living room, clothed and covered with a sheet. Z. and M. Jr. were lying on a nearby loveseat watching television. The defendant asked the two children to join him on the larger couch. Z. lay down alongside the defendant under the blanket, while M. Jr. curled up at the foot of the couch. As Z. lay next to the defendant, he began rubbing Z.’s buttocks and private parts over her clothing with his hand. He then pulled down Z.’s pajama pants and underwear, and inserted one of his fingers into Z.’s vagina. Z. left the couch and fled to the bathroom ...
In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim by name or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
"The defendant moved out of Z.’s home in March 2012. Approximately three weeks later, Z. disclosed to her parents what had happened with the defendant, and Z.’s parents contacted the police ... At the conclusion of the trial, the jury found the defendant guilty on all counts ... [T]he court sentenced the defendant to a total effective term of ten years incarceration and ten years special parole." State v. Chase, 154 Conn.App. 337, 340-41, 107 A.3d 460 (2014), cert. denied, 315 Conn. 925, 109 A.3d 922 (2015).
Additional facts will be discussed as necessary to address the petitioner’s claims.
I
DISCUSSION
In his petition, the petitioner sets forth several claims of ineffective assistance of trial counsel, Attorney Gemeiner. The petitioner makes a number of assertions as to the specific ways in which Attorney Gemeiner’s representation fell below an objective standard of reasonableness and resulted in prejudice to the petitioner.
"A criminal defendant’s right to the effective assistance of counsel ... is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that "(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575-76, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
"To satisfy the performance prong, a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed ... by the [s]ixth [a]mendment.’" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. "It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel’s performance, the habeas court is required to "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." Strickland v. Washington, supra, 466 U.S. 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that "counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686. "Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong." King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).
A
Failure to Retain an Expert Witness
In the present matter, the petitioner claims that Attorney Gemeiner failed to retain an expert witness to help develop a theory of defense, to evaluate Donna Meyer’s forensic interview of the victim, and to bolster the petitioner’s defense. The petitioner failed to present credible evidence to demonstrate that Attorney Gemeiner made such failures and further failed to present sufficient credible evidence to overcome the presumption of reasonableness afforded to Attorney Gemeiner’s strategic and tactical decisions regarding expert witnesses.
The Appellate Court has indicated "that there is no per se rule that requires a trial attorney to seek out an expert witness. Thompson v. Commissioner of Correction, 131 Conn.App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). In Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), however, this court noted that in some cases, ‘the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.’ Id., 76." Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). However, the decision to call any witness, including an expert witness, "does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 681, 51 A.3d 948 (2012).
"[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn.App. 110, 131, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). "[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 particular act or omission of counsel was unreasonable ... 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 ...
"[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment ... It is well established that [a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time." (Internal quotation marks omitted.) Coward v. Commissioner of Correction, 143 Conn.App. 789, 800-01, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).
1
As to the claim that Attorney Gemeiner failed to retain an expert to help develop a theory of defense, the court finds that Attorney Gemeiner’s testimony credibly supports the contention that Attorney Gemeiner retained Dr. Sgroi to help develop a theory of defense. Attorney Gemeiner testified that he did not recall specifics of the conversations, but that he spoke with Dr. Sgroi regarding the criminal matter. He recalled only driving to Dr. Sgroi’s home to deliver her materials to review for the case in advance of trial. His typical practice when speaking with experts in criminal cases consists of reviewing all items in detail so as not to assume anything about the potential evidence. He provided Dr. Sgroi with materials to review prior to trial and Dr. Sgroi’s testimony at the criminal trial was indicative of issues he would have addressed with her while developing his defense theory and in preparation for trial. The trial transcripts demonstrate that Attorney Gemeiner presented Dr. Sgroi’s testimony to rebut the testimony and opinions provided by the state’s expert witnesses.
2
The petitioner claims that Attorney Gemeiner failed to present expert testimony on the following matters: forensic interview protocols, delayed disclosure, validation criteria, influence on children by another child’s reported abuse, and false memory creation. To prove the claim that Attorney Gemeiner failed to present the testimony of an expert witness to critique Meyer’s forensic interview of the victim, the petitioner presented the testimony of Dr. Nancy Eisworth and the transcripts of the underlying criminal trial. Several experts testified as to varying aspects of child sexual assault, including forensic interviewing, medical examination and children’s responses to sexual abuse. The state presented the testimony of, inter alia: Donna Meyer, who conducted the forensic interview of the minor victim; Dr. Diane Fountas, who conducted the medical examination of the minor victim; and Theresa Montelli, a forensic interviewer at the Child Sex Abuse Clinic at Yale-New Haven Hospital. The defense presented the testimony of Dr. Sgroi. The crux of the analysis for this claim lies in the purported deficiencies in Dr. Sgroi’s testimony at the criminal trial. The trial transcripts demonstrate that a considerable portion of Dr. Sgroi’s testimony consisted of her critiquing Donna Meyer’s forensic interview of the victim and highlighting flaws in Meyer’s methods and Meyer’s use of the Finding Words protocol. Dr. Sgroi testified that Meyer failed to employ cognitive interview instructions, which are utilized to improve the reliability and accuracy of information elicited from a child during a forensic interview. Dr. Sgroi relied on her thirty years of experience with child sexual abuse, forensic interviewing protocol, and her experience critiquing forensic interviews to illustrate deficiencies in Meyer’s interview methods.
Regarding the purported deficiencies in Dr. Sgroi’s testimony, the court’s review of the evidence presented demonstrates that Attorney Gemeiner in fact questioned Dr. Sgroi as to each of the enumerated issues, with the exception of delayed disclosure. However, the trial transcripts demonstrate that Attorney Gemeiner cross examined the state’s expert, Theresa Montelli, as to delayed disclosure and sought to impeach her credibility on the topic. The record supports the contention that Attorney Gemeiner made the tactical and strategic decision not to question Dr. Sgroi as to delayed disclosure, but rather to address the topic through Montelli.
Within this claim, the petitioner further avers that Attorney Gemeiner failed to retain an expert to research child forensic interview protocol analyses in peer-reviewed literature to support the petitioner’s defense. Attorney Gemeiner retained, consulted with and presented the testimony of Dr. Sgroi, who testified that she was not familiar with certain peer-reviewed literature addressing protocol analyses. However, the petitioner failed to demonstrate that Attorney Gemeiner’s failure to present such expert testimony in the criminal trial fell below an objective standard of reasonableness. The petitioner failed to present sufficient credible evidence to override the presumption of reasonableness afforded to Attorney Gemeiner’s exercise of his professional judgment to make strategic and tactical decisions as to the presentation of the testimony of an expert witness familiar with peer reviewed literature on protocol analyses.
3
As to the claim that Attorney Gemeiner failed to utilize an expert to bolster the petitioner’s defense, the record reveals several facts. Attorney Gemeiner’s testimony, Dr. Eisworth’s testimony, and the transcript of the underlying criminal trial demonstrate that Attorney Gemeiner retained, consulted with, and presented the testimony of Dr. Sgroi at the criminal trial. At the criminal trial, Dr. Sgroi testified about false memory creation and the rehearsal effect as it pertains to children answering questions about the disclosure that result in the child giving answers the child believes the adults desire to hear. Additionally, the evidence demonstrates that Attorney Gemeiner elicited testimony from the state’s expert witnesses that bolstered the petitioner’s theory of defense. Attorney Gemeiner elicited testimony from Meyer regarding her lack of questions to the victim to address the potential for implanted ideas, coaching, dishonesty, and suggestibility due to another child’s disclosure contemporaneous with the victim’s disclosure. Attacking the state’s experts’ credentials constitutes one approach to bolstering the petitioner’s defense within the purview of trial counsel’s strategic and tactical decision making. Attorney Gemeiner utilized the cross examination of Meyer and Dr. Fountas and Dr. Sgroi’s testimony to attack Meyer’s and Fountas’ methodology, and he utilized his cross examination of Montelli’s to attack her credibility as to delayed disclosure. To this end, Attorney Gemeiner retained and presented the testimony of Dr. Sgroi in a manner that did not fall below an objective standard of reasonableness.
Upon review of the habeas corpus trial evidence and the underlying criminal trial transcripts, it becomes evident to the court that the petitioner’s averments amount to no more than after-the-fact critiques of Attorney Gemeiner’s strategic decisions as to his testing of the state’s evidence, his presentation of expert testimony, and an attempted challenge to the sufficiency of the evidence presented at trial. To that end, the petitioner failed to present sufficient credible evidence to assail the presumption of reasonableness afforded to Attorney Gemeiner’s strategic and tactical decisions pertaining to retaining and presenting the testimony of expert witnesses.
B
Failure to Become Familiar with Relevant Material
The petitioner claims that Attorney Gemeiner’s performance fell below an objective standard of reasonableness in that he failed to become familiar with the applicable child forensic interview protocol, disclosure literature, and validation criteria. See Johnson v. Commissioner of Correction, supra, 285 Conn. 575-76.
Attorney Gemeiner testified that at the time of this trial he had significant experience with child sexual assault cases and that child sexual assault cases were a "steady part of his [legal] practice." He further testified that he "tried to read all materials on testing the veracity of children- beyond newspapers and magazines." Additionally, the criminal trial transcripts show Attorney Gemeiner cross examining Meyer as to forensic interview protocol and Montelli as to the significance of delays in a child’s disclosure. Upon review of the evidence presented at trial, including the criminal trial transcripts, the petitioner failed to present credible evidence to demonstrate that Attorney Gemeiner failed to achieve a reasonable degree of familiarity with materials relevant to the applicable child forensic interview protocol, disclosure literature, and validation criteria in preparation for the petitioner’s criminal trial.
C
Failure to Properly Question Witnesses
The petitioner claims that Attorney Gemeiner failed to properly question the state’s witnesses, yet he failed to provide sufficient credible evidence to overcome the presumption of reasonableness afforded to trial counsel’s strategic and tactical decisions on how to question witnesses at trial.
"[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn.App. 110, 131, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). "[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 particular act or omission of counsel was unreasonable ... 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 ...
"[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment ... It is well established that [a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time." (Internal quotation marks omitted.) Coward v. Commissioner of Correction, 143 Conn.App. 789, 800-01, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).
In the present matter, the petitioner claims that Attorney Gemeiner failed to properly question several of the state’s witnesses. The petitioner avers that Attorney Gemeiner failed to question the victim about her sexual knowledge. The petitioner avers that Attorney Gemeiner failed to question Meyer about the victim’s sexual knowledge, failed to prepare to cross examine Meyer, and/or to cross examine Meyer generally and specifically about subjects that would have called into question the victim’s veracity and credibility. The petitioner avers that Attorney Gemeiner failed to impeach Meyer, Dr. Fountas and Montelli regarding errors and non-scientific assertions in their respective testimonies. Moreover, the petitioner avers that the Attorney Gemeiner failed to cross examine and/or prepare to cross examine the victim, Dr. Fountas, Montelli and the victim’s parents.
The petitioner adduced evidence at the habeas corpus trial which contravened the petitioner’s factual assertions regarding Meyer, the victim, Dr. Fountas, Montelli and the victim’s parents. The criminal trial transcripts demonstrate that Attorney Gemeiner cross examined each of these witnesses called to testify by the state and questioned Meyer about alternative theories of explaining the incident disclosed by the victim. The evidence at the habeas trial, including the record from the underlying criminal trial, is devoid of credible evidence that Attorney Gemeiner failed to prepare for questioning these witnesses. The record demonstrates that Attorney Gemeiner did not question Meyer or the victim about the victim’s sexual knowledge. However, the petitioner failed to present sufficient credible evidence to overcome the presumption of reasonableness afforded to Attorney Gemeiner’s trial strategy and tactical decisions pertaining to the specific questions asked of the state’s witnesses, including questioning Meyer and the victim about the victim’s sexual knowledge.
D
Failure to Investigate Alternative Theories
The petitioner claims that Attorney Gemeiner failed to investigate alternative theories to explain why the victim would falsely accuse the petitioner. The petitioner failed to present credible evidence to demonstrate how he would have benefitted from additional investigation.
"The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it ... The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Citations omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
The petitioner claims that Attorney Gemeiner failed to investigate alternative theories to explain why the victim would falsely accuse the petitioner. The criminal trial transcripts demonstrate that Attorney Gemeiner presented one alternative explanation: that the victim fabricated the allegations to avoid getting in trouble. However, at trial before this court the petitioner failed to present any evidence to demonstrate how any further investigation would have benefitted the petitioner at the underlying criminal trial. The petitioner failed to carry his burden of proof to demonstrate what evidence or information further investigation would have revealed and how such evidence or information would have aided in the petitioner’s defense.
E
Failure to Devise the Strongest or a Credible Theory of Defense
The petitioner claims that Attorney Gemeiner failed to devise the strongest or a credible theory of defense. The petitioner fails to present sufficient credible evidence sufficient to overcome the presumption of reasonableness as to defense counsel’s strategic and tactical trial decisions.
"[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 126 Conn.App. 131. "[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 particular act or omission of counsel was unreasonable ... 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 ...
"[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment ... It is well established that [a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time." (Internal quotation marks omitted.) Coward v. Commissioner of Correction, supra, 143 Conn.App. 800-01.
In the present matter, Attorney Gemeiner testified that the theory of defense consisted of claiming that the victim fabricated the allegations. He admitted that this case was difficult from a defense standpoint due to: 1) there being no way to prove the petitioner did not have access to the victim; 2) the victim presenting well to the jury, even during cross examination; and 3) the petitioner not presenting well to the jury due to his heroin issue making it hard for the jury to relate to him. The criminal trial transcripts demonstrate that Attorney Gemeiner claimed in his theory of defense and argued in his closing argument that the victim fabricated the allegations to avoid getting in trouble for another child pulling down her brother’s pants. There is no requirement that any defense counsel pursue a theory of defense based on what a third party deems to be the strongest defense or a credible defense. Devising a theory of defense is a strategic and tactical decision within the province of defense counsel and such decision is presumed reasonable. Here, the petitioner failed to present sufficient credible evidence at trial to overcome the presumption of reasonableness afforded to Attorney Gemeiner’s theory of defense.
II
CONCLUSION
For the foregoing reasons, the court finds that the petitioner failed to demonstrate that Attorney Gemeiner’s performance in the criminal trial constituted deficient performance. Therefore, the court need not address the prejudice prong of the Strickland analysis to dispose of the petitioner’s claims. Accordingly, the petition for a writ of habeas corpus is denied.