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Cancel v. Commissioner of Correction

Court of Appeals of Connecticut

May 7, 2019

SANTOS CANCEL
v.
COMMISSIONER OF CORRECTION

          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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