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David P. v. Commissioner of Correction

Court of Appeals of Connecticut

August 9, 2016

DAVID P. [*]

          Argued January 12, 2016

         Appeal from Superior Court, judicial district of Tolland, Bright, J.

          Heather Clark, assigned counsel, for the appellant (petitioner).

          Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee (respondent).

          Beach, Alvord and Norcott, Js.


          NORCOTT, J.

         The petitioner, David P., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court erred by concluding that habeas counsel for the petitioner in his first habeas trial provided effective assistance. Specifically, the petitioner claimed that his first habeas counsel was ineffective because he failed to investigate and raise claims that criminal trial counsel provided ineffective assistance when he (1) failed to offer witnesses who would have supported a defense theory that the investigation violated best practices, consistent with the interviewers' exerting social pressure and influence on the victims; and (2) mischaracterized testimony of the underlying allegations and elicited additional allegations. The petitioner further claims that the habeas court erred by overruling the petitioner's objection, raised during the habeas trial, to testimony regarding statements made by one of the child victims to Alphonse Gambardella, a worker with the Department of Children and Families (department), because the statements were hearsay and not within any exception. We disagree that habeas counsel in the petitioner's first habeas trial rendered ineffective assistance. Although we agree with the petitioner that Gambardella's testimony was hearsay not within any exception, we conclude that its admission was harmless error. Accordingly, we affirm the judgment.

         This appeal is the most recent in a series of challenges to the petitioner's conviction, in 2000, of a total of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and five counts of risk of injury to a child in violation of General Statutes § 53-21. These convictions arose from the petitioner's prolonged sexual abuse of three of his daughters, herein referred to as A, B, and C.[2] See State v. David P., 70 Conn.App. 462, 464-66, 800 A.2d 541, cert, denied, 262 Conn. 907, 810 A.2d 275 (2002). The petitioner ultimately received two trials, the first of which ended in a mistrial on September 30, 1998, and the second of which resulted in these convictions on March 30, 2000. After the petitioner was convicted, on May 19, 2000, he was sentenced to ninety years imprisonment.

         From this judgment, the petitioner took an appeal, in which he raised several challenges to his convictions not relevant to those before us now. See id., 464. This court affirmed the judgment. Id. In 2002, the petitioner filed his first petition seeking a writ of habeas corpus. In his amended petition and at trial in 2004, he alleged that trial counsel was ineffective in that he failed to obtain and offer evidence-specifically, time sheets from his own employers and his former wife's employer-that would have helped to establish an alibi defense. He also alleged that his appellate counsel was ineffective for failing to brief properly and to raise certain claims that were unrelated to the claims in the present appeal. After trial, the court dismissed the habeas petition. The petitioner appealed from this dismissal, his appellate counsel withdrew, and the appeal was dismissed for lack of diligence.

         On June 14, 2013, the petitioner filed the operative amended habeas petition in the present case. In his petition, the petitioner raised, inter alia, the two claims of ineffective assistance of counsel that he now pursues on appeal. Following a trial on November 25 through 27, 2013, the court, Bright, J., denied the petition for a writ of habeas corpus on May 19, 2014, and granted certification to appeal on May 27, 2014. Further procedural history and facts will be set forth as necessary.


         The petitioner claims that his habeas counsel in his first habeas trial, Joseph Visone, rendered ineffective assistance. Specifically, the petitioner claims that Attorney Visone was ineffective because he failed to investigate and raise a claim that trial counsel, William Palmieri, rendered ineffective assistance when Palmieri failed to present, in the petitioner's second trial, a defense theory that the investigation violated best practices because the investigators suggested the victims' answers to questions. The petitioner further challenged as clearly erroneous the habeas court's findings that (1) trial counsel had a reasonable expectation that he would be able to present evidence important to his theory; (2) Dr. David Mantell, a forensic psychologist who testified as an expert for the petitioner in this matter, had only minor issues with respect to the interviews of two of the victims; and (3) there was a risk that if Palmieri had raised the alternative defense, Gambardella and certain other constancy witnesses at the second trial could have given damaging testimony. The respondent, the Commissioner of Correction, counters that these findings were supported by the record. The respondent further argues that the habeas court properly concluded that Palmieri was not ineffective for deciding to pursue a peer pressure defense instead of a suggestive investigation defense, and that Attorney Visone, therefore, was not ineffective for failing to raise the claim of ineffective assistance of trial counsel in the first habeas action. We agree with the respondent.

         The following additional facts and procedural history are relevant to our discussion of this claim. The habeas court found that Palmieri's theory of defense was that (1) the allegations of A, B and C were false and arose from social pressure exerted by A's friends, K and H, who were angry with the petitioner because he would not allow A to see them; (2) B fabricated her allegations in an effort to corroborate A's allegations; and (3) the allegations of C were simply not credible. Palmieri further argued at trial that there was little physical evidence of abuse of A, and none of B or C. At the first criminal trial, Palmieri supported his theory by arguing that the evidence showed that K and H falsely reported the abuse to the department six months before A's initial disclosure, and that K reported the abuse to a social worker at A's school, attended the meeting with the social worker, and did most of the talking during that meeting, with A merely agreeing with K's descriptions of the alleged sexual abuse.

         The habeas court further found that the court, Licari, J., declared a mistrial on all counts, except one, in the petitioner's first criminal trial on September 30, 1998, because the jury deadlocked on all but the one count. The jury did, however, acquit the petitioner of one of the counts of sexual assault in the first degree involving A.

         The habeas court found that Palmieri used the same theory of defense in the second criminal trial, in March, 2000, as in the first. In the second criminal trial, however, defense counsel encountered setbacks that did not arise in the first trial: for example, the state objected to evidence that was admitted in the first trial regarding the motive of H and K for filing a report with the department. The court, Fracasse, J., sustained this objection, ruling that the evidence was irrelevant. Further hindering the defense's theory, H and K denied any recollection of whether A had reported anything to them, and of whether they discussed anything with the department. In addition to these challenges, in the second criminal trial, the state presented two constancy of accusation witnesses, L and D, neither of whom testified at the first criminal trial. L, A's classmate, testified that A reported the petitioner's sexual abuse to her six months before H and K made their initial report to the department, and D, L's mother, testified that L had relayed this information to her around the time A told L.

         In the habeas trial that is the subject of this appeal, counsel for the petitioner presented evidence of a different theory of defense, a theory that the petitioner claimed was unreasonably not pursued by defense counsel in the petitioner's second criminal trial. This alternative theory was that, rather than being fabrications produced under pressure from K and H, the allegations of the three sisters were suggested to them by the manner in which the investigation was conducted. In particular, the petitioner took issue with the interviews in which the sisters made their disclosures. He claimed that the interviews were suggestive because they were lengthy, repeated, and attended by numerous authority figures, and that Palmieri performed deficiently by not calling as witnesses those persons who were present for the interviews but had not been called by the state, by not more thoroughly examining those witnesses involved in these interviews who did testify, and by failing to obtain certain medical, psychological, and educational records that would have substantiated how the interviews took place.

         The habeas court's factual findings with respect to the petitioner's claim regarding this alternative theory of defense centered on the testimony and other evidence presented by and through several individuals who were involved in the interviews of the three sisters, and also upon the testimony of the petitioner's expert witness, Mantell, a licensed psychologist specializing, inter alia, in child abuse and neglect and forensic psychology.

         The habeas court found, from the testimony of Elizabeth DeLancy, a school psychologist, and A, that DeLancy first learned of the abuse from A's friend, K. On May 12, 1997, K came to DeLancy's office with A, whereupon, according to DeLancy, K did most of the talking. K would provide details of the abuse, DeLancy would ask A if this was true, and A would simply respond "yes." DeLancy testified that A did describe on her own when and where the last instance of abuse had occurred. By contrast, A testified that K did all of the talking in the May 12 meeting with DeLancy, and that A initially denied the abuse. The habeas court found that DeLancy's notarized statement of May 15, which memorialized these events, corroborated DeLancy's testimony about them.

         The habeas court also summarized DeLancy's May 13, 1997 meeting with A, in which A initially denied any abuse, but then, in response to DeLancy's insistence that she tell the truth, disclosed that her father, the petitioner, was having sex with her. DeLancy testified that K was present for this interview. DeLancy also testified that at the end of the interview, she told A that she would need to disclose to the police and the department, and that doing so would stop the abuse. DeLancy's aforementioned notarized statement, however, differed from her testimony about the May 13 meeting in that DeLancy recorded that she asked A about specific sexual acts rather than asking A to describe the acts that the petitioner had done. According to the statement, A also wrote down on a piece of paper, "My father is having sex with me." The statement also indicates that DeLancy brought K into the room for "emotional support" for A, although K was instructed not to answer any questions. Finally, DeLancy reported in her statement that she told A that she would have to be brave when meeting with the police and the department, that she was doing the right thing, and that she was a "good kid."

         Again on May 13, 1997, A was interviewed, this time by DeLancy, Gambardella, the principal of A's school, and Anthony Natale, a detective with the Hamden Police Department, together, for ninety minutes. Natale testified that he told A at the beginning of the interview that she had not done anything wrong and did not need to be afraid to speak freely. He also testified both at the petitioner's criminal trial and in the habeas trial that A had disclosed during the interview that the abuse had been occurring for about one and one-half years. Gambardella testified in the habeas trial that after Natale left, A asked to speak to him alone and told him, "I know what sex is. My dad is having sex with me."

         The habeas court found that Gambardella then interviewed each of A's three sisters[3] individually, with DeLancy present, and both B and C each testified at the petitioner's criminal trials that they had denied to Gambardella any abuse by the petitioner.

         Again, on May 13, for one hour, Donald Remillard, another detective with the Hamden Police Department, interviewed A. On May 21, 1997, Janet Murphy, a nurse practitioner, interviewed A alone at the Yale-New Haven Hospital Child Sexual Abuse Clinic (clinic) about the allegations as part of a medical examination for physical evidence of sexual abuse. On June 10, 1997, Florence Freudenthal, who worked at the clinic, interviewed A again.

         B also underwent several interviews. After A's May 12 and 13 disclosures, she and her sisters were referred to the Coordinated Council for Children in Crisis (4C) for counseling sessions with Diane Brinkman. On June 4, 1997, during one such session, while Brinkman and B were alone, B disclosed that ...

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