Argued
January 31, 2019
Procedural
History
Amended
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Oliver, J.; judgment denying the petition, from which
the petitioner, on the granting of certification, appealed to
this court. Affirmed.
Vishal
K. Garg, assigned counsel, with whom, on the brief, was
Desmond M. Ryan, for the appellant (petitioner).
Lisa
A. Riggione, senior assistant state's attorney, with
whom, on the brief, were Maureen Platt, state's attorney,
and Marc G. Ramia, senior assistant state's attorney, for
the appellee (respondent).
Keller, Prescott and Harper, Js.
OPINION
HARPER, J.
The
petitioner, Santos Cancel, appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the habeas
court erred in concluding that his trial counsel had not
provided ineffective assistance by failing (1) to litigate
adequately the issue of whether the two underlying criminal
cases against the petitioner should have been joined for
trial, (2) to object to opinion testimony from a witness on
an ultimate issue of fact with respect to the criminal
charges in one of the underlying cases, (3) to present expert
testimony that could have offered an alternative innocent
explanation for the sexual assault allegations against the
petitioner, and (4) to attend the petitioner's
presentence investigation interview with a probation officer.
We affirm the judgment of the habeas court.
The
following facts and procedural history are relevant to our
resolution of this appeal. The petitioner was charged in two
cases alleging sexual assault that were joined for trial.
After a jury trial, the petitioner was convicted, in both
cases, of sexual assault in the fourth degree in violation of
General Statutes § 53a-73a (a) (1) (A), and risk of
injury to a child in violation of General Statutes §
53-21 (a) (1) and (2). This court's opinion in the
petitioner's direct appeal in State v. Cancel,
149 Conn.App. 86, 87 A.3d 618, cert. denied, 311 Conn. 954,
97 A.3d 985 (2014), sets forth the following facts:
‘‘The jury reasonably could have found the
following facts with respect to the charges in the first
case, which involved the victim, J.[1] J was eleven years of age
in February, 2009, and resided with her uncle. J's
mother resided with the [petitioner] and three of J's
maternal siblings, all minors, in a nearby city. Sometime
in February, 2009, J went to her mother's residence for
an overnight visit. J's mother, the [petitioner], and
the three other children were present in the residence
during J's stay. On the night of her visit, J went to
sleep in her sisters' room, where she shared a bed with
two of her siblings. J later awoke to find the [petitioner]
sitting on the floor touching her ‘front private
area.' When the [petitioner] realized that J was awake,
he apologized to her. J's mother then called for the
[petitioner], prompting him to leave the room. Later that
night, the [petitioner] returned to the bedroom. He woke J
and instructed her to go to another bedroom in the
residence. J proceeded to go into the other bedroom, alone,
and went back to sleep. The [petitioner] then entered the
other bedroom. He shut the door, positioned himself on top
of J and ‘went up and down.' The [petitioner]
then cut a hole in J's underwear and initiated sexual
contact with J's intimate areas. Following her
encounter with the [petitioner], J went into the bathroom
and felt a ‘wet' sensation in and around her
intimate parts.
‘‘The
next day, J returned to her uncle's home crying and
ostensibly nervous. Sometime later, J told her uncle's
girlfriend that she was having ‘a problem.' J
explained how the [petitioner] had ‘told her to go to
sleep and to lay . . . face down,' and how he had cut her
pants. J also told her uncle that the [petitioner] had tried
to ‘abuse her' the night she stayed at her
mother's home. J's uncle subsequently contacted the
social worker at J's school. The social worker met with
J, and J explained what occurred on the night she stayed at
her mother's residence. After meeting with J, the social
worker reported the incident to the Department of Children
and Families (department). The department, in turn, contacted
the police. Thereafter, J and her uncle went to the police
station where J explained to the police how the [petitioner]
had made inappropriate contact with her on the night she
stayed at her mother's residence. The police subsequently
initiated an investigation into the incident and sought out
J's mother and the [petitioner] for questioning. When the
police arrived at the mother's residence, the
[petitioner] ran out the back door. J's mother, however,
agreed to accompany the police to the station for
questioning. During questioning, J's mother indicated
that during J's most recent visit, J had told her that
she woke up with holes in her underwear. J's mother also
indicated that one of her other daughters had reported waking
up with holes in her underwear on several occasions.
‘‘The
jury reasonably could have found the following facts with
respect to the charges in the second case, involving the
victim, G. G was ten years of age in February, 2009, and one
of J's siblings. G lived with her mother and the
[petitioner] on a permanent basis. After speaking to her
mother in connection with J, the police questioned G. G told
the police that on certain nights, the [petitioner] would
come into her room and tell her to change her sleeping
position. In the mornings that followed the
[petitioner's] nighttime visits, G woke up to find holes
in her underwear and pants, always in the vicinity of her
intimate areas. These holes were never present when she went
to sleep, but appeared after she woke up the next morning.
She was uncertain of what caused the holes to appear, but
believed that her cat caused the holes in her clothing
because her cat previously had ripped holes in her
sister's clothing. She explained that the holes in her
clothing appeared only during the time the [petitioner] lived
in the residence. She usually would give the underwear to her
mother so she could mend them or throw them away.Grevealed to
police that she was wearing a pair of the mended underwear
during questioning and that the dresser at her mother's
residence contained many pairs of the underwear that still
had holes in them or had been mended by her mother. With the
mother's permission, the police took possession of the
underwear G wore at the time of questioning. The police
subsequently obtained and executed a search warrant on the
mother's residence. During the search, the police seized
twelve additional pairs of underwear and two pairs of pants
that either had holes in them or appeared to have been
mended. In addition, the police seized two pairs of scissors.
The thirteen pairs of underwear and two pants seized by the
police subsequently were submitted for forensic analysis. The
forensic analysis of the clothing revealed that the two pants
and six out of the thirteen pairs of underwear had holes
consistent with being cut by a sharp blade, not ripped. The
holes in each item were located between the rear end and
genital area. DNA analysis revealed that the
[petitioner's] semen was present on the inside and
outside of three pairs of G's underwear and one pair of
her pants. The [petitioner] could not be eliminated as the
source of semen present on another pair of underwear.
‘‘The
[petitioner] was arrested on March 5, 2009.[2] With respect to
J's case, the state, in a substitute information, charged
the [petitioner] with one count of attempt to commit sexual
assault in the first degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-70 (a) (2), one count of
sexual assault in the fourth degree in violation of §
53a-73a (a) (1) (A), and two counts of risk of injury to a
child in violation of § 53-21 (a) (1) and (2). With
respect to G's case, the state, in a substitute
information, charged the [petitioner] with one count of
sexual assault in the fourth degree in violation of §
53a-73a (a) (1) (A), and two counts of risk of injury to a
child in violation of § 53-21 (a) (1) and (2).
‘‘Before
trial commenced, the state moved for a consolidated trial on
the charges in both cases. The court granted the motion after
defense counsel raised no objection. At the conclusion of
evidence, the jury found the [petitioner] not guilty of
attempt to commit sexual assault in the first degree, but
guilty on each of the remaining charges in J's case. The
jury found the [petitioner] guilty of all charges in G's
case. The court sentenced the [petitioner] to a total
effective term of thirty years of imprisonment.''
(Footnotes in original.) Id., 88-91. This court
affirmed the petitioner's convictions on direct appeal.
See id., 103.
On July
31, 2014, the petitioner, in a self-represented capacity,
filed a petition for a writ of habeas corpus. On October 12,
2016, the petitioner, represented by counsel, filed the
operative amended petition. In the amended petition, the
petitioner alleged that Attorney Tina Sypek D'Amato
rendered ineffective assistance by failing (1) to adequately
investigate, research, and educate herself about the issues
unique to child sexual assault cases; (2) to object to the
joinder of the two cases for trial; (3) to consult with an
expert and present a suggestibility defense oran alternative
innocent explanation as supported by expert testimony; (4) to
object to testimony from Detective Cathleen Knapp that, in
her opinion, G was a victim of sexual assault; (5) to attend
the petitioner's presentence investigation interview; (6)
to adequately cross-examine, impeach, or otherwise challenge
the testimony of J, G, or their uncle; (7) to adequately
pursue the production and disclosure of confidential and
privileged materials related to J; and (8) to present
evidence of a custody dispute between J's mother and
J's uncle.
By
memorandum of decision issued on August 17, 2017, the habeas
court denied the amended petition, concluding that the
petitioner did not meet his burden of establishing either
deficient performance or prejudice with respect to his first,
third, fifth, sixth, seventh, and eighth claims of his
operative amended complaint. The court additionally
concluded, without determining that deficient performance had
been rendered by Attorney D'Amato, that the petitioner
did not meet his burden of establishing prejudice as to his
second and fourth claims. On August 31, 2017, the court
granted the petitioner's petition for certification to
appeal from its decision. This appeal followed.[3] Additional facts
will be set forth as necessary.
We
begin by setting forth the relevant legal principles and our
well settled standard of review governing ineffective
assistance of counsel claims. ‘‘In a habeas
appeal, this court cannot disturb the underlying facts found
by the habeas court unless they are clearly erroneous, but
our review of whether the facts as found by the habeas court
constituted a violation of the petitioner's
constitutional right to effective assistance of counsel is
plenary.'' (Internal quotation marks omitted.)
Mukhtaar v. Commissioner of Correction, 158
Conn.App. 431, 437, 119 A.3d 607 (2015); see also Buie v.
Commissioner of Correction, 187 Conn.App. 414, 417, 202
A.3d 453, cert. denied, 331 Conn. 905, 202 A.3d 373 (2019).
‘‘To
succeed on a claim of ineffective assistance of counsel, a
habeas petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . . . In
Strickland . . . the United States Supreme Court
established that for a petitioner to prevail on a claim of
ineffective assistance of counsel, he must show that
counsel's assistance was so defective as to require
reversal of [the] conviction . . . . That requires the
petitioner to show (1) that counsel's performance was
deficient and (2) that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both showings,
it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result
unreliable. . . . 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. . . .
‘‘To
satisfy the performance prong [of the Strickland
test] 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. . . . [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. . . .
‘‘With
respect to the prejudice component of the Strickland
test, the petitioner must demonstrate that counsel's
errors were so serious as to deprive the [petitioner] of a
fair trial, a trial whose result is reliable. . . . It is not
enough for the [petitioner] to show that the errors had some
conceivable effect on the outcome of the proceedings. . . .
Rather, [t]he [petitioner] must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. . . . A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.'' (Citations omitted; internal quotation
marks omitted.) Mukhtaar v. Commissioner of
Correction, supra, 158 Conn.App. 437-38; see also
Holloway v. Commissioner of Correction, 145
Conn.App. 353, 364-65, 77 A.3d 777 (2013).
Finally,
‘‘a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies. The object of an ineffectiveness claim
is not to grade counsel's performance. If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be
followed.'' Strickland v. Washington, supra,
466 U.S. 697. Guided by these principles, we turn to the
specific claims made by the petitioner.
I
We
first address the petitioner's claim that the habeas
court erred in concluding that he was not prejudiced by his
trial counsel's alleged failure to litigate adequately
the issue of whether the two underlying criminal cases
against the petitioner should have been joined for trial. The
petitioner raises three arguments in regard to the
court's analysis of prejudice, namely, that (1) the
habeas court misapplied the factors outlined in State v.
Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987),
to this case, (2) he was prejudiced by his trial
counsel's failure to litigate adequately the joinder
issue regarding his compelling need to testify in the case
involving G and his equally compelling need to refrain from
testifying in the case involving J, and (3) the court failed
to consider that, had the issue been litigated at the
petitioner's criminal trial, he would have prevailed in
his direct appeal. Because we conclude that the evidence in
both cases was cross admissible, these arguments are not
persuasive.
The
following additional facts are relevant to this claim. The
petitioner's trial counsel, Attorney D'Amato,
‘‘did not file an objection to the state's
motion for joinder between December, 2009, when the state
filed it, and September, 2011, the time of the
[petitioner's] trial. In addition . . . the parties
discussed the motion both in chambers and before the court.
In chambers . . . [Attorney D'Amato] had suggested that
there would not be a lot of argument regarding the motion.
Then, when the court heard the parties on the motion,
[Attorney D'Amato] expressly stated that there was no
objection to the motion. After the court granted the motion,
[Attorney D'Amato] did not indicate any disagreement with
the court's decision. For the remainder of the
consolidated trial, [Attorney D'Amato] did not raise the
issue of joinder.'' (Footnote omitted; internal
quotation marks omitted.) State v. Cancel, supra,
149 Conn.App. 101. As a result of the foregoing, this court
concluded in the petitioner's direct appeal that he had
‘‘waived any constitutional claims he may have
had regarding the joinder.'' Id., 102.
During
the petitioner's habeas trial, Attorney D'Amato
recalled that she had researched the joinder issue and
concluded that there was no good faith basis to challenge
joinder because the law at the time provided that the
evidence in both cases would have been cross
admissible.[4] In addition, it was established during the
habeas proceeding that, after his semen was found on G's
underwear, the petitioner had told Attorney D'Amato that
he had masturbated and used G's underwear to clean
himself. Attorney D'Amato testified that no other
evidence could provide an explanation for the presence of the
petitioner's semen on G's underwear, and that, if
G's and J's cases against the petitioner were not
joined, it would have been important to allow the petitioner
to provide his explanation during G's case. Attorney
D'Amato also testified that, in regard to J's case,
the petitioner did not want to testify, she did not want the
petitioner to testify for fear of him being charged with
perjury, and that, in her experience, having an interpreter
involved, as would have been necessary during the
petitioner's testimony, would have made the petitioner
appear insincere. Finally, Attorney D'Amato did not
recall whether the petitioner's alleged desire to testify
regarding how his semen got on G's underwear, but his
desire not to testify in J's case, provided an argument
to challenge joinder.
The
habeas court relied on the factors set forth in State v.
Boscarino, supra, 204 Conn. 722-24, [5] and concluded
that the petitioner failed to prove prejudice as to his
joinder claim. Specifically, the court concluded that both
cases had distinguishable fact patterns involving two
different victims, alleged similar sexual misconduct
involving minors, were not so violent or brutal as to impair
the jury's ability to consider the charges against the
petitioner in a fair manner, and that the joint trial was
neither lengthy nor complex.
We
begin by setting forth the legal principles relevant to the
issue of joinder. ‘‘Whenever two or more cases
are pending at the same time against the same party in the
same court for offenses of the same character, counts for
such offenses may be joined in one information unless the
court orders otherwise. . . . [Our Supreme Court] has
recognized, however, that improper joinder may expose a
defendant to potential prejudice for three reasons: First,
when several charges have been made against the defendant,
the jury may consider that a person charged with doing so
many things is a bad [person] who must have done something,
and may cumulate evidence against him . . . . Second, the
jury may have used the evidence of one case to convict the
defendant in another case even though that evidence would
have been inadmissible at a separate trial. . . . [Third]
joinder of cases that are factually similar but legally
unconnected . . . present[s] the . . . danger that a
defendant will be subjected to the omnipresent risk . . .
that although so much [of the evidence] as would be
admissible upon any one of the charges might not [persuade
the jury] of the accused's guilt, the sum of it will
convince themas to all.'' (Citation omitted; internal
quotation marks omitted.) State v. Ellis, 270 Conn.
337, 374-75, 852 A.2d 676 (2004).
At the
time of the petitioner's trial, a clear presumption in
favor of joinder and against severance existed. See
id., 375. In State v. Payne, 303 Conn. 538,
549-50, 34 A.3d 370 (2012), however, our Supreme Court
rejected the presumption in favor of joinder and established
the following burden of proof with respect to joinder:
‘‘[W]hen charges are set forth in separate
informations, presumably because they are not of the same
character, and the state has moved in the trial court to join
the multiple informations for trial, the state bears the
burden of proving that the defendant will not be
substantially prejudiced by joinder pursuant to Practice Book
§ 41-19. The state may satisfy this burden by proving,
by a preponderance of the evidence, either that the evidence
in the cases is cross admissible or that the defendant will
not be unfairly prejudiced pursuant to the Boscarino
factors.'' (Footnote omitted; internal quotation
marks omitted.)[6] Importantly, ‘‘although our
Supreme Court rejected the presumption in favor of joinder,
the court did not alter the remainder of the substantive law
that Connecticut courts apply when determining whether
joinder is appropriate.'' Rogers v. Commissioner
of Correction, 143 Conn.App. 206, 212, 70 A.3d 1068
(2013).
In
determining whether joinder is appropriate, it is well
established that where the evidence in one case is cross
admissible at the trial of another case, the defendant will
not be substantially prejudiced by joinder. See State v.
Crenshaw, 313 Conn. 69, 83-84, 95 A.3d 1113 (2014)
(‘‘[when] evidence of one incident can be
admitted at the trial of the other [incident] . . . the
defendant [will] not ordinarily be substantially prejudiced
by joinder of the offenses for a single trial''
[internal quotation marks omitted]); State v. Payne,
supra, 303 Conn. 549-50 (‘‘[T]he state bears the
burden of proving that the defendant will not be
substantially prejudiced by joinder . . . . The state may
satisfy this burden by proving . . . that the evidence in the
cases is cross admissible . . . .'' [Citation
omitted.]); State v. Sanseverino, 287 Conn. 608,
628-29, 949 A.2d 1156 (2008) (‘‘[w]e consistently
have found joinder to be proper if we have concluded that the
evidence of other crimes or uncharged misconduct would have
been cross admissible at separate trials''),
overruled in part on other grounds by State v.
DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), and
superseded in part on other grounds after reconsideration by
State v. Sanseverino, 291 Conn. 574, 579, 969 A.2d
710 (2009). Our case law is clear that a court considering
joinder need not apply the Boscarino factors if
evidence in the cases is cross admissible. As such, we do not
consider the habeas court's application of the
Boscarino factors and instead conclude that the
petitioner was not prejudiced by his counsel's alleged
ineffective performance in regard to joinder because the
state would have been able to prove that the evidence in both
cases was cross admissible.[7]
At the
time of the petitioner's criminal trial, our Supreme
Court already had recognized ‘‘a limited
exception to the prohibition on the admission of uncharged
misconduct[8] evidence in sex crime cases to
prove that the defendant had a propensity to engage in
aberrant and compulsive criminal sexual behavior.''
(Emphasis in original; footnote added.) State v.
DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008).
Generally, in order for the state to introduce any uncharged
sexual misconduct evidence against a defendant charged with
sex crimes, the state must first demonstrate that such
evidence ‘‘is relevant to prove that the
defendant had a propensity or a tendency to engage in the
type of aberrant and compulsive criminal sexual behavior with
which he or she is charged. . . . [E]vidence of uncharged
misconduct is relevant to prove that the defendant had a
propensity or a tendency to engage in the crime charged only
if it is: (1) . . . not too remote in time; (2) . . . similar
to the offense charged; and (3) . . . committed upon persons
similar to the prosecuting witness. . . .
‘‘Second,
evidence of uncharged misconduct is admissible only if its
probative value outweighs the prejudicial effect that
invariably flows from its admission. . . . In balancing the
probative value of such evidence against its prejudicial
effect, however, trial courts must be mindful of the purpose
for which the evidence is to be admitted, namely, to permit
the jury to consider a defendant's prior bad acts in the
area of sexual abuse or child molestation for the purpose of
showing propensity.
‘‘Lastly,
to minimize the risk of undue prejudice to the defendant, the
admission of evidence of uncharged sexual misconduct under
the limited propensity exception adopted herein must be
accompanied by an appropriate cautionary instruction to the
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