January 10, 2017
from Superior Court, judicial district of Tolland, Sferrazza,
Tsimbidaros, assigned counsel, for the appellant
Michele C. Lukban, senior assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney, and Eva B. Lenczewski, supervisory assistant
state's attorney, for the appellee (respondent).
Lavine, Beach and Flynn, Js.
petitioner, Antwon W., appeals from the judgment of the
habeas court denying his second amended petition for a writ
of habeas corpus alleging ineffective assistance of counsel.
He claims that, contrary to the decision of the habeas court,
his trial counsel rendered ineffective assistance by failing
to (1) adequately protect his constitutional right to an
impartial jury; (2) object to the jury instructions provided
by the trial court, Cremins, J.,  regarding the
proper use of constancy of accusation evidence; (3)
adequately cross-examine or otherwise impeach the victim; (4)
advise him to accept the state's plea offer rather than
proceed to trial; and (5) investigate and call witnesses who
would have provided exculpatory testimony. We affirm the
judgment of the habeas court.
petitioner sexually assaulted his twelve year old cousin four
times from 2002 through 2003 at his uncle's home.
State v. Antwon W., 118 Conn.App. 180,
181-84, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922,
991 A.2d 568 (2010). In 2006, the petitioner, who was
eighteen years old at the time of the assaults, was convicted
of one count of sexual assault in the third degree, six
counts of sexual assault in the first degree,  and one count of
risk of injury to a child. Id., 184-85. Attorney
Gregory St. John represented the petitioner throughout the
criminal trial. Judge Cremins sentenced the petitioner to an
effective term of fifteen years imprisonment followed by
fifteen years of special parole. Id., 185. This
court upheld the petitioner's conviction on direct
appeal. Id., 182.
the petitioner filed a second amended petition for a writ of
habeas corpus setting forth numerous claims of ineffective
assistance of counsel. As relevant to this appeal, the petitioner
alleged that Attorney St. John performed deficiently because
he failed to (1) ensure that the petitioner was tried before
an impartial jury by neglecting to ask prospective jurors
during voir dire whether they had been the victim of sexual
assault, and by failing to investigate potential juror bias
after one of the jurors expressed concerns during
deliberations; (2) object to Judge Cremins' instructions
to the jury regarding the proper use of constancy of
accusation evidence; (3) adequately cross-examine or
otherwise impeach the state's witnesses; (4) provide the
petitioner with adequate legal advice regarding the
state's plea offers, or advise him that accepting a plea
offer, rather than proceeding to trial, was in his best
interests; and (5) investigate and call witnesses who could
have provided exculpatory evidence. The petitioner further
alleged that, if not for these acts and omissions by Attorney
St. John, there was a reasonable probability he would have
prevailed in his criminal trial.
habeas trial was held on September 23 and 24, 2014. Prior to
trial, the respondent, the Commissioner of Correction, filed
a motion in limine to preclude the petitioner from
introducing testimony from the jurors in his criminal trial
regarding their deliberative process. The habeas court
granted that motion and subsequently denied the
petitioner's motion for reconsideration. At the habeas
trial, the petitioner testified on his own behalf and
presented testimony from Attorney Leon Kaatz, an expert in
criminal defense practice. Attorney St. John testified for
the respondent. The habeas court denied the petitioner's
second amended petition in a memorandum of decision dated
December 18, 2014. Following the granting of certification to
appeal, this appeal followed. Additional facts and procedural
history will be set forth where necessary.
begin by setting forth our standard of review and the legal
principles that govern claims of ineffective assistance of
counsel. ‘‘The habeas court is afforded broad
discretion in making its factual findings, and those findings
will not be disturbed unless they are clearly erroneous. . .
. Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the habeas
court's factual findings to the pertinent legal standard,
however, presents a mixed question of law and fact, which is
subject to plenary review.'' (Citations omitted;
internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012).
United States Supreme Court articulated in Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), ‘‘[a] claim of
ineffective assistance of counsel consists of two components:
a performance prong and a prejudice prong. 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. . .
. Put another way, the petitioner must demonstrate that his
attorney's representation was not reasonably competent or
within the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. To satisfy
the prejudice prong, a claimant must demonstrate that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. . . . Because both prongs . . . must be
established for a habeas petitioner to prevail, a court may
dismiss a petitioner's claim if he fails to meet either
prong.'' (Citations omitted; internal quotation marks
omitted.) Thompson v. Commissioner of
Correction, 131 Conn.App. 671, 690-91, 27 A.3d 86, cert.
denied, 303 Conn. 902, 31 A.3d 1177 (2011).
in analyzing the performance prong of Strickland,
our focus is on ‘‘whether counsel's
assistance was reasonable considering all the circumstances.
. . . 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. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. . . .
a court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct. . . . At the same time, the court
should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.'' (Citation omitted; internal quotation
marks omitted.) Gaines v. Commissioner of
Correction, supra, 306 Conn. 679-80.
preliminary matter, the petitioner argues that we should
apply the cumulative error doctrine in determining whether he
was prejudiced by Attorney St. John's purported
deficiencies. Our appellate courts, however, have
consistently declined to adopt this method of review.
‘‘When faced with the assertion that the claims
of error, none of which individually constituted error,
should be aggregated to form a separate basis for a claim of
a constitutional violation of a right to a fair trial, our
Supreme Court has repeatedly decline[d] to create a new
constitutional claim in which the totality of alleged
constitutional error is greater than the sum of its
parts.'' (Internal quotation marks omitted.)
Anderson v. Commissioner of Correction, 148
Conn.App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn.
945, 90 A.3d 976, cert. denied sub nom. Anderson v.
Dzurenda, __U.S.__, 135 S.Ct. 201, 190 L.Ed.2d 155
(2014); see State v. Tillman, 220 Conn.
487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207,
112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Because it is not
within the province of this court to reevaluate decisions of
our Supreme Court; Anderson v. Commissioner of
Correction, supra, 645; we lack authority under the
current state of our case law to analyze the petitioner's
ineffective assistance claims under the cumulative error
rule. Moreover, application of the cumulative error rule
would not entitle the petitioner to relief because not one of
Attorney St. John's purported trial errors constitutes
deficient performance under Strickland. See
Henderson v. Commissioner of Correction,
104 Conn.App. 557, 567, 935 A.2d 162 (2007), cert. denied,
285 Conn. 911, 943 A.2d 470 (2008).
threshold issue resolved, and mindful of the above legal
principles, we now turn to the petitioner's claims on
petitioner first claims that the habeas court erred in
concluding that Attorney St. John did not render ineffective
assistance of counsel by failing to adequately protect his
constitutional right to an impartial jury. In support of this
claim, the petitioner argues (1) that Attorney St. John was
ineffective because, during voir dire, he neglected to ask
any of the potential jurors whether they or someone close to
them had been the victim of sexual assault; (2) that Attorney
St. John was ineffective because he failed to request a more
searching inquiry into potential juror bias or misconduct
after a juror raised concerns about another juror's
‘‘personal past'' during deliberations;
and (3) that the habeas court improperly granted the
respondent's motion in limine precluding him from calling
the jurors as witnesses in his habeas trial to establish that
juror bias existed and prejudiced him in his criminal
trial. We address each of these arguments in
petitioner first contends that Attorney St. John rendered
ineffective assistance during voir dire because he failed to
ask potential jurors whether they or someone close to them
had been a victim of sexual assault. We disagree.
record discloses the following facts. The trial court,
Prescott, J., conducted jury selection from April 17
through April 19, 2006. At the start of each day, prior to
the commencement of individual voir dire questioning, Judge
Prescott informed each of the venire panels that the purpose
of voir dire was to ascertain each prospective juror's
ability to be impartial, instructed the panel to answer
questions accurately and to the best of their ability, and
posed an array of preliminary questions to the panels,
including: ‘‘Have you had any life experiences
that in any way relate to the charges in this case that might
prevent you from being a fair and impartial juror? Do you
have any bias or prejudices that could in any way come into
play in sitting on this case?'' Several members of
the venire responded affirmatively to these preliminary
questions and were ultimately excused for cause following
individual voir dire because either they or their close
friend or family member had been the victim of sexual
assault. This is an indication in the record that Judge
Prescott's preliminary questions were adequate to deal
with any bias or prejudice that the prospective jurors may
have had because either they or persons close to them had
been victimized by sexual assault crimes.
the six venire members ultimately selected as jurors
responded affirmatively to any of Judge Prescott's
preliminary questions. The six prospective jurors then
appeared before Judge Prescott, the prosecutor, and Attorney
St. John for individual voir dire. Judge Prescott began each
examination by asking the prospective juror whether he or she
was aware of anything that they thought might affect their
ability to be fair and impartial. Each prospective juror
responded in the negative. One prospective juror,
V.B.,  stated in response to a subsequent
question from Judge Prescott that she had
‘‘trouble'' with the nature of the
charges, but stated she could nonetheless be fair and
impartial. Attorney St. John asked V.B. whether
there was ‘‘any kind of a barrier to [her] being
able to be a fair and impartial juror, '' to which
V.B. responded that she believed she would be fair.
Attorney St. John further asked V.B. if there was
anything else the court and counsel should know that might
impact her ability to be fair and impartial, and
V.B. answered that she had lost a child.
prospective juror, J.B., informed Judge Prescott that she was
‘‘a little partial to the sexual
offenses'' because, given her training and work as a
nurse, she tended to be more of a victim advocate. She
indicated, however, that she would try to be fair. The
prosecutor elicited from J.B. that, other than a patient she
encountered at work, she had never known anyone who had been
the victim of sexual assault. The four other prospective
jurors were all asked, by Attorney St. John, the prosecutor
or both of them, whether the nature of the charges or
anything else impacted their ability to be impartial, and
none of them raised concerns about past experiences with
habeas petition, the petitioner alleged that Attorney St.
John provided ineffective assistance by failing to ask the
jurors whether they had been the victim of sexual assault,
which resulted in the empanelment of a juror who was biased
against persons accused of sexual assault
crimes. The habeas court found that Attorney St.
John's failure to pose this specific question did not
amount to deficient performance because he and the prosecutor
had ‘‘cover[ed] the same territory'' by
asking the jurors whether anything about the charges or their
life experiences impacted their impartiality. The habeas
court concluded that, under these circumstances, the failure
to specifically ask whether the jurors had been a victim of
sexual assault, ‘‘using those exact words, was
inconsequential.'' We discern no error in that
reasoning on appeal.
impartiality is a core requirement of the right to trial by
jury guaranteed by the constitution of Connecticut, article
first, § 8, and by the sixth amendment to the United
States constitution.'' (Internal quotation marks
omitted.) State v. Miller, 163 Conn.App.
772, 776, 137 A.3d 105, cert. denied, 321 Conn. 905, 136 A.3d
1273 (2016). The federal and state constitutions require
juries to be ‘‘composed of individuals able to
decide the case solely on the evidence and apply the law in
accordance with the court's instructions . . .
.'' State v. Griffin, 251 Conn.
671, 691-92, 741 A.2d 913 (1999). Voir dire is critical to
protecting the right to an impartial jury because it reveals
‘‘information upon which the trial court may
decide which prospective jurors . . . should be excused for
cause . . . and . . . information to counsel which may aid
them in the exercise of their right to peremptory
challenge.'' (Internal quotation marks omitted.)
State v. Faust, 237 Conn. 454, 462, 678
A.2d 910 (1996).
well established, however, that in determining whether trial
counsel performed deficiently under Strickland,
‘‘[a]n attorney's line of questioning on
examination of a witness clearly is tactical in nature. [As
such, this] court will not, in hindsight, second-guess
counsel's trial strategy.'' (Internal quotation
marks omitted.) Antonio A. v.
Commissioner of Correction, 148 Conn.App. 825, 832,
87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014).
Likewise, courts cannot prescribe a specific manner by which
attorneys conduct voir dire, a process that ‘‘is
inevitably a call upon [the trial lawyer's] experience
and intuition.'' Romero v. Lynaugh,
884 F.2d 871, 878 (5th Cir. 1989), cert. denied sub nom.
Romero v. Collins. 494 U.S. 1012, 110 S.Ct.
1311, 108 L.Ed.2d 487 (1990). For example, this court
rejected a claim that the trial court erred in declining to
suggest to trial counsel ways to rephrase voir dire questions
because reviewing courts ‘‘cannot impose on a
trial court the burden of suggesting to parties how they
should conduct their cases.'' State v.
Charlton, 30 Conn.App. 359, 367, 620 A.2d 1297,
cert. denied, 225 Conn. 922, 625 A.2d 824 (1993). We
therefore indulge a strong presumption that trial
counsel's lines of inquiry during voir dire were
reasonable. Habeas petitioners must bear the heavy burden of
demonstrating that ‘‘there [was] no . . .
tactical justification for the course taken.''
(Internal quotation marks omitted.) Taft v.
Commissioner of Correction, 159 Conn.App. 537, 557,
124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015).
petitioner has not sustained that burden in the present case.
Although Attorney St. John did not ask the prospective jurors
the specific question of whether they or someone close to
them had been the victim of sexual assault, the voir dire
process as a whole adequately covered those subjects. Judge
Prescott, in his preliminary questions, asked the members of
each venire panel whether they had any ‘‘life
experiences'' or ‘‘bias or
prejudices'' that might color their ability to return
a fair and impartial verdict. Attorney St. John and the
prosecutor then asked each juror individually whether they
knew of anything that might impact their impartiality. None
of the jurors identified anything of concern, and each
expressed confidence she or he could be impartial. Attorney
St. John's failure to ask a specific question that would
have been largely cumulative of other questions does not
render his performance deficient. As we have stated,
attorneys need not question jurors in any particular manner
to be effective. Accordingly, the petitioner's claim
fails to satisfy the performance prong of
Strickland; we need not reach the issue of
petitioner further argues, without analysis, that Attorney
St. John should have ‘‘asked that [J.B.] be
excused for cause or should have exercised a peremptory
challenge.'' To the extent the petitioner is
attempting to raise a distinct claim of ineffective
assistance, we disagree. This court has consistently
recognized that decisions about whether to peremptorily
strike particular jurors are matters of trial strategy. See
Smith v. Commissioner of Correction, 116
Conn.App. 383, 389, 975 A.2d 751, cert. denied, 293 Conn.
925, 980 A.2d 912 (2009); Beverly v.
Commissioner of Correction, 101 Conn.App. 248, 252,
922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916
(2007); Ziel v. Commissioner of Correction,
89 Conn.App. 371, 378, 873 A.2d 239, cert. denied, 275 Conn.
920, 883 A.2d 1254 (2005). This deference soundly recognizes
that a trial attorney is in the best position to determine
whether a particular venire person can fairly hear his
client's cause. Here, J.B. repeatedly indicated that,
despite her training and work as a nurse, she would try to be
fair and had never known anyone who had been the victim of
sexual assault. Given these assurances, any claim by the
petitioner that Attorney St. John's failure to strike
J.B. was outside the realm of reasonable trial strategy lacks
petitioner next argues that Attorney St. John performed
deficiently by failing to request a more thorough
investigation into juror bias or misconduct after one of the
jurors raised concerns during deliberations about another
juror's ‘‘personal past.'' We
jury began deliberating on May 15, 2006. The following
morning, on May 16, 2006, Judge Cremins brought one of the
jurors, L.B., into the courtroom because she had
‘‘expressed a concern.'' The following
‘‘The Court: If the concern is something not
related to deliberations, I want you to tell me what that is.
If it's the other, if the concern relates to the
deliberations, that's not anything that we can discuss.
Okay. Let's first of all tell me which it relates to?
‘‘[L.B.]: Well, it came out during
deliberations; however, I think it really doesn't concern
deliberations. I think it could affect the deliberations, but