185 Conn. App. 787
Conn. App. Ct.2018Background
- Petitioner Ricardo R. was convicted of one count of risk of injury to a child and two counts of first‑degree sexual assault; convictions and sentences were affirmed on direct appeal.
- Petitioner filed an amended habeas petition alleging ineffective assistance of trial counsel (Attorney Wayne Keeney), principally for failing to retain/consult a forensic psychologist and for inadequate cross‑examination of the State’s expert, Dr. Larry Rosenberg.
- At the habeas trial, Keeney testified he purposely declined a defense expert because he believed an expert would likely reinforce the State’s testimony and risk exposure to damaging case specifics; he instead pursued a credibility and delay‑in‑reporting strategy in cross‑examination and closing argument.
- The habeas court found Keeney’s choices strategic and reasonable, concluding counsel was familiar with Rosenberg’s expected testimony and adequately undermined its relevance and specificity at trial.
- The habeas court denied relief and later denied certification to appeal; petitioner appealed that denial, arguing the issues were debatable and that record was inadequate regarding whether counsel should have consulted an expert.
- The appellate court concluded the habeas court did not abuse its discretion, held counsel’s performance was not deficient, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas court abused discretion in denying certification to appeal | Denial was improper because claims are debatable and record incomplete about counsel’s failure to consult an expert | Habeas court reasonably found claims lacked merit and were not deserving of further review | No abuse of discretion; certification denial affirmed |
| Whether trial counsel was deficient for not retaining/consulting a forensic psychologist to prepare cross‑examination of State expert Rosenberg | Keeney’s inaccurate beliefs about forensic literature required an expert to prepare effective cross‑examination | Keeney knew Rosenberg’s testimony, reasonably opted not to hire a defense expert to avoid reinforcing State’s case and exposing harmful specifics | Decision not to retain/consult an expert was a reasonable strategic choice; not deficient |
| Whether Keeney’s cross‑examination of Rosenberg was inadequate | Counsel failed to rebut Rosenberg’s misleading suggestions and needed expert help to do so | Keeney elicited testimony that Rosenberg’s opinions were general, not case‑specific, and that Rosenberg had not interviewed the victims; this fit a strategic credibility attack | Cross‑examination was within reasonable professional judgment; not deficient |
| Whether counsel was deficient for failing to present expert testimony to support alternative innocent explanations (mother’s animus; complainant fabrication) | Expert testimony was needed to explain delayed reporting and alternative motives for false allegations | The alternative theories were commonsense and were pursued through testimony and argument; an expert may have reinforced State’s evidence and risked harmful cross‑examination | Failure to present expert for those theories was reasonable trial strategy; not deficient |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test: performance and prejudice)
- Michael T. v. Commissioner of Correction, 307 Conn. 84 (2012) (no bright‑line rule requiring defense expert in every child sexual assault case)
- Simms v. Warden, 229 Conn. 178 (1994) (standards for appellate review of denial of certification to appeal in habeas cases)
- Harrington v. Richter, 562 U.S. 86 (2011) (deference to counsel’s tactical decisions and wide latitude for trial strategy)
- Vazquez v. Commissioner of Correction, 128 Conn. App. 425 (2011) (definition of deficient performance standard under Connecticut law)