Background
Troy Michael Rossato was convicted after a bench trial of two counts of criminal sexual assault for sexually penetrating L.R. while she was unconscious and unable to consent. The trial court credited L.R. and other witnesses over Rossato’s account that the sexual encounter was consensual, and the Second District previously affirmed the convictions.
Rossato later sought postconviction relief, alleging that trial counsel was ineffective for not using two bystander’s reports, text messages between L.R. and Hannah Timmer, expert evidence about alcohol-related memory impairment, and phone records. The circuit court dismissed most claims at the second stage and, after an evidentiary hearing, rejected the remaining claim concerning the bystander’s reports.
The Court’s Holding
The Fourth District affirmed. It held that counsel’s decision not to use the bystander’s reports was reasonable trial strategy. Although one report included statements potentially helpful to Rossato, the reports also supported the State’s evidence that L.R. was severely intoxicated, bolstered Timmer’s credibility, and contained disputed hearsay. Rossato therefore failed to establish deficient performance under Strickland.
The court also upheld the exclusion of an attempt to impeach trial counsel with findings from an unrelated federal case, finding the material irrelevant and untimely disclosed. It further held that the text messages could have damaged the defense, the proposed expert-testimony claim lacked a supporting expert affidavit, and the alleged phone records would not have aided the defense because L.R. also placed Rossato at the residence at about 6 a.m.
Key Takeaways
- A strategic decision to forgo mixed or potentially damaging impeachment evidence does not establish deficient performance merely because the defense was unsuccessful.
- Postconviction claims based on uncalled expert testimony require supporting evidence, such as an affidavit establishing what the expert would have said.
- An unrelated court’s prior credibility finding about trial counsel does not itself show counsel was untruthful or ineffective in the defendant’s case.
Why It Matters
The decision illustrates the high bar for challenging counsel’s tactical choices in postconviction proceedings, particularly where proposed evidence could reinforce the prosecution’s theory. It also confirms that alleged errors cannot be cumulated into prejudice where the defendant has not shown any deficient performance.