167 Conn. App. 455
Conn. App. Ct.2016Background
- Petitioner David P. was convicted in 2000 of multiple counts of sexual assault and risk of injury for abuse of three daughters; he received a 90-year sentence after a second criminal trial (first trial ended in a mistrial).
- Petitioner filed multiple habeas petitions; this appeal concerns his 2013 amended habeas petition and a 2014 denial by the habeas court (Bright, J.) with certification to appeal.
- Core complaints on appeal: (1) that petitioner’s first habeas counsel (Visone) was ineffective for not arguing trial counsel (Palmieri) was ineffective in failing to pursue a “suggestive interview” defense (i.e., that investigators’ methods suggested answers to child victims); and (2) that Visone should have raised that Palmieri mischaracterized or elicited damaging testimony in cross-examination; and (3) that the habeas court improperly admitted hearsay testimony by Gambardella recounting statements by one victim.
- The habeas court found Mantell (defense expert) credibly critiqued some interview practices (especially A’s interviews), but found the suggestive-interview theory weak as to B and C and vulnerable because pursuing it likely would have elicited damaging constancy testimony (e.g., Gambardella, L, D) and required revealing details that would harm the defense.
- The habeas court concluded Palmieri’s trial strategy (relying on peer-pressure/fabrication theory used at the first trial) was objectively reasonable and thus Visone was not ineffective for failing to litigate an alternative ineffective-assistance claim. The court also found Gambardella’s hearsay testimony was erroneously admitted but harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether first habeas counsel (Visone) was ineffective for failing to claim trial counsel (Palmieri) was ineffective for not pursuing a suggestive-interview defense | Visone should have investigated and raised that Palmieri was ineffective for not presenting expert-supported evidence that the investigators suggested answers and pressured victims | Palmieri’s chosen peer-pressure/fabrication strategy was reasonable; pursuing suggestive-interview defense had serious weaknesses and risked eliciting damaging testimony, so Visone’s failure to raise it was not objectively unreasonable | Visone not ineffective; habeas court’s finding that Palmieri’s strategy was reasonable affirmed |
| Whether trial counsel mischaracterized/elicited additional damaging testimony on cross (and thus habeas counsel was ineffective for not raising it) | Palmieri misstated timing/frequency/detail of abuse, elicited additional harmful allegations, and impeached inconsistently, so Visone should have raised ineffective-assistance | Palmieri’s cross-examination targeted prior inconsistencies and denials to impeach credibility; strategic impeachment choices are virtually unchallengeable | Not deficient performance; Visone’s omission not ineffective |
| Whether Gambardella’s testimony recounting victim A’s out-of-court statements was admissible at habeas trial | Testimony was hearsay and not within any exception; admission prejudiced petitioner | State contended petitioner opened the door or testimony was cumulative/harmless | Admission was hearsay and improper, but harmless error given voluminous cumulative record |
| Standard of review for ineffective-assistance findings | N/A — procedural point | N/A — procedural point | Factual findings upheld unless clearly erroneous; ineffective-assistance legal question reviewed plenarily under Strickland standard |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test: deficient performance and prejudice)
- State v. Saucier, 283 Conn. 207 (discusses hearsay rule and review of evidentiary rulings)
- Williams v. Commissioner of Correction, 142 Conn. App. 744 (procedural framing for habeas review and ineffective-assistance standards)
- State v. Troupe, 237 Conn. 284 (addresses constancy and prior consistent statement doctrines)
- Orcutt v. Commissioner of Correction, 284 Conn. 724 (deference to habeas court factual findings and credibility determinations)
- Michael T. v. Commissioner of Correction, 307 Conn. 84 (discusses when defense expert testimony may be constitutionally required)