Cancel v. Commissioner of Correction , 189 Conn. App. 667 ( 2019 )

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SANTOS CANCEL v. COMMISSIONER
OF CORRECTION
(AC 40977)
Keller, Prescott and Harper, Js.
Syllabus
The petitioner, who had been convicted of sexual assault in the fourth
degree and risk of injury to a child, sought of a writ of habeas corpus,
claiming that his trial counsel had rendered ineffective assistance by
failing, inter alia, to attend his presentence investigation interview with
a probation officer. The petitioner claimed that his counsel’s absence
from the interview constituted deficient performance and that he was
prejudiced by her absence because he made harmful comments during
the interview that his counsel, if present, would have advised him not to
make and which adversely affected the subsequent sentence he received
from the trial court. The petitioner further claimed that because the
presentence investigation interview was a critical stage of the proceed-
ings and that his counsel’s absence constituted a complete denial of his
sixth amendment right to effective assistance of counsel, the trial court
should have applied the presumption of prejudice under United States
v. Cronic (466 U.S. 648) that arises when the denial of sixth amendment
rights makes the adversary process itself presumptively unreliable. The
petitioner had been charged in separate informations, which were joined
for trial, in connection with incidents that involved two minors, J and
G. At the habeas trial, a forensic psychologist, E, who had reviewed a
forensic interview of J, who had developmental issues, testified about
the potential for suggestibility in J’s forensic interview, but made no
determination about J’s level of suggestibility or that the forensic inter-
view was improperly conducted. The habeas court rendered judgment
denying the habeas petition, concluding, inter alia, that, under Strickland
v. Washington (466 U.S. 668), the petitioner’s trial counsel did not render
deficient performance as a result of her absence from the presentence
investigation interview and that the petitioner failed to prove that he
was prejudiced thereby. The court further concluded that the petitioner
failed to prove that his trial counsel’s representation was deficient as
to his other claims of ineffective assistance or that he was prejudiced
by any aspect of her allegedly deficient performance. Thereafter, the
habeas court granted the petition for certification to appeal, and the
petitioner appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court erred
in concluding that he was not prejudiced by his trial counsel’s failure
to litigate whether the two underlying criminal cases against him should
have been joined for trial: the evidence in both cases was cross admissi-
ble, as the crimes involving J and G were not too remote in time, the
petitioner was accused of committing the same crimes in the same
manner and location in both cases, with the exception of one charge
of which he was found not guilty, because of the similarity of the
evidence in both cases, evidence from one case that may have been
introduced in the other would have been unlikely to arouse the jurors’
emotions, and even if the cases had not been joined, the evidence in
one case would have been cross admissible in the other case to prove
that the petitioner had a propensity or tendency to sexually assault
adolescent girls; moreover, the petitioner’s claim that he had a compel-
ling need to testify in the case involving G but not in the case involving
J was unavailing, as his testimony in G’s case similarly would have been
needed in J’s case, and because the evidence was cross admissible,
there was no reasonable probability that an objection to joinder would
have changed the outcome of his criminal trial or that his convictions
would have been reversed on direct appeal.
2. The petitioner failed to demonstrate that the habeas court erred in conclud-
ing that he was not prejudiced by his trial counsel’s failure to object to
the opinion testimony of K, a detective, that G was a victim of sexual
assault: there was no reasonable probability that, had trial counsel suc-
cessfully objected to K’s testimony, the result of the criminal trial would
have been different, as there was overwhelming evidence apart from
K’s testimony from which the jury reasonably could have concluded
that the petitioner sexually assaulted G, including statements that J and
G had made to the police, the videotape of J’s forensic interview, DNA
analysis that revealed the presence of the petitioner’s semen on G’s
underwear and clothing, which contained holes that had been cut
between the rear end and genital area, and testimony from J that indi-
cated that there were holes in her underwear; moreover, even if the cases
had not been joined, the evidence in both cases was cross admissible
as evidence that the petitioner had a propensity to engage in the sexual
conduct with which he was charged.
3. The habeas court properly concluded that the petitioner’s trial counsel
did not render deficient performance by deciding not to present testi-
mony from an expert in forensic psychology regarding the suggestive
influence that may have been present in J’s forensic interview: trial
counsel was aware of J’s developmental issues and the role that suggest-
ibility could have in child sexual assault cases, and determined, after
she reviewed the videotape of the forensic interview several times and
found no suggestibility in the forensic interview, that there was no
legitimate reason to retain an expert or to pursue a suggestibility defense
strategy because of the overwhelming evidence against the petitioner;
moreover, E did not make a determination that J was influenced during
the forensic interview or that the forensic interview was improperly
conducted, the information obtained from the forensic interview was
consistent with information that K had obtained from other witnesses,
and the forensic interview conformed to guidelines specified by the
police and was conducted in an impartial manner by an expert in child
sexual assault interviews.
4. The petitioner could not prevail on his claim that his trial counsel’s
absence from the presentence investigation interview constituted a com-
plete denial of his sixth amendment right to the effective assistance
of counsel that warranted a presumption of prejudice under Cronic:
although the habeas court determined under Strickland that the petition-
er’s right to counsel was not violated, this court concluded that his sixth
amendment right to counsel was not violated on the alternative ground
that he was not entitled to effective assistance of counsel at his presen-
tence investigation interview because a presentence investigation inter-
view is not a critical stage of a criminal proceeding to which the right
to counsel applies, as trial courts in Connecticut, which exercise broad,
independent discretion in imposing a sentence, enlist the aid of probation
officers to investigate and make a report prior to sentencing, and the
probation officer, thus, is an extension of the court and not an agent
of the government, and because a proceeding must be adversarial in
nature to be considered a critical stage, the right to counsel at a critical
stage does not extend to nonadversarial proceedings; accordingly, preju-
dice under Cronic could not be presumed as a result of trial counsel’s
absence from the petitioner’s presentence investigation interview.
Argued January 31—officially released May 7, 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 (peti-
tioner).
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).
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 conclud-
ing 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 ulti-
mate 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 inno-
cent 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 rele-
vant 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 Febru-
ary, 2009, J went to her mother’s residence for an over-
night 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 resi-
dence. 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 Chil-
dren 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 con-
tact with her on the night she stayed at her mother’s
residence. The police subsequently initiated an investi-
gation 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 ques-
tioning, 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 Febru-
ary, 2009, and one of J’s siblings. G lived with her mother
and the [petitioner] on a permanent basis. After speak-
ing to her mother in connection with J, the police ques-
tioned 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 pre-
viously 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. G revealed
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 con-
solidated 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 [peti-
tioner] guilty of all charges in G’s case. The court sen-
tenced 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 edu-
cate 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 or an alternative innocent expla-
nation 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 inter-
view; (6) to adequately cross-examine, impeach, or oth-
erwise 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 peti-
tioner’s petition for certification to appeal from its deci-
sion. 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 inef-
fective assistance of counsel claims. ‘‘In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel 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 pre-
vail 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 perfor-
mance was deficient and (2) that the deficient perfor-
mance 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 pro-
fessional assistance; that is, the [petitioner] must over-
come 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 [peti-
tioner] 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 reason-
able 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 coun-
sel’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 ade-
quately 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 evi-
dence in both cases was cross admissible, these argu-
ments 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 join-
der 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 con-
solidated 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 pro-
vided 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 under-
wear 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, hav-
ing an interpreter involved, as would have been neces-
sary 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 con-
cluded that the petitioner failed to prove prejudice as
to his joinder claim. Specifically, the court concluded
that both cases had distinguishable fact patterns involv-
ing two different victims, alleged similar sexual miscon-
duct 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 informa-
tion 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 them as 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 presump-
tion 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 estab-
lished the following burden of proof with respect to
joinder: ‘‘[W]hen charges are set forth in separate infor-
mations, 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 prov-
ing, 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 quo-
tation 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 join-
der. 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 preju-
diced by joinder of the offenses for a single trial’’ [inter-
nal 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 misconduct8 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). Gener-
ally, in order for the state to introduce any uncharged
sexual misconduct evidence against a defendant
charged with sex crimes, the state must first demon-
strate 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]vi-
dence 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 admis-
sion. . . . In balancing the probative value of such evi-
dence 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 pro-
pensity.
‘‘Lastly, to minimize the risk of undue prejudice to
the defendant, the admission of evidence of uncharged
sexual misconduct under the limited propensity excep-
tion adopted herein must be accompanied by an appro-
priate cautionary instruction to the jury.’’ (Citations
omitted; internal quotation marks omitted.) Id., 473–74.
In the present case, the crimes involving J and G
were not too remote in time. J reported her sexual
assault in February, 2009, and G reported several
instances similar to what J had reported during the
relatively short time the petitioner resided in the home.
State v. Cancel, supra, 149 Conn. App. 88–90. Moreover,
in both cases, the petitioner was, with the exception
of the charge of sexual assault in the first degree in
regard to J, accused of committing the same crimes, in
the same manner and location, upon the two female
minors. See id. Both J and G made statements that the
petitioner had come into their rooms alone, and both
cases included evidence that the victims had found
holes in their underwear and that the holes had
appeared during the time the petitioner lived at the
mother’s residence. In addition, because of the similar-
ity of the evidence in both cases, evidence from one
case that may have been introduced in the other would
have been unlikely to arouse the jurors’ emotions. See
State v. James G., 268 Conn. 382, 400, 844 A.2d 810
(2004) (evidence of sexual abuse less likely to unduly
arouse jurors’ emotions when similar evidence has
already been presented to jury).
Finally, although it was not necessary for the court
to provide the jury with an instruction regarding the
proper use of prior misconduct evidence relating to J
or G because the cases were joined, the court did pro-
vide the jury with an instruction regarding the proper
use of prior misconduct evidence relating to the peti-
tioner’s previous sexual assault conviction. Specifically,
the court stated in its charge to the jury: ‘‘Now, other
misconduct. In a criminal case in which the defendant
is charged with a crime . . . exhibiting [aberrant] and
compulsive criminal sexual behavior, evidence of the
defendant’s commission of another offense is admissi-
ble and may be considered for its bearing on any matter
to which it is relevant. . . .
‘‘Now, with regard to [the petitioner’s previous con-
viction], evidence of that offense on its own is not
sufficient to prove the [petitioner] guilty of the crime
charged in the information. . . . It’s very important
that you keep that in mind. . . .
‘‘The [previous conviction] is offered to show that
the [petitioner] had an unusual disposition, that is, a
sexual interest in children. . . . Now, that’s all you can
use it for . . . . [The conviction] is claimed evidence
of a motive for the crime.’’
The foregoing instructions to the jury were appro-
priate in the context of the petitioner’s criminal trial,
and would also have been appropriate had the cases
involving J and G not been joined. As such, even if the
cases involving J and G had not been joined, the evi-
dence in one case would have been admissible in the
other to prove that the petitioner had a propensity or
a tendency to sexually assault adolescent girls.
With this in mind, the remaining arguments that the
petitioner makes on appeal in regard to joinder are
unpersuasive. The petitioner’s argument that he had a
compelling need to testify in the case involving G, but
did not have a similar need to testify in the case involv-
ing J, is belied by the fact that the evidence in both
cases was cross admissible. Specifically, the evidence
that the petitioner’s semen was found on G’s underwear
could have been introduced in J’s case. As such, the
petitioner’s purported need to testify in G’s case to
explain how his semen got on her underwear similarly
would be needed in J’s case.
Additionally, the petitioner’s contention that the
proper argument and preservation of the joinder issue
at his criminal trial would have led to a more favorable
outcome in his direct appeal must also be rejected.
Because the evidence, as previously described, was
cross admissible, there was no likelihood that the peti-
tioner’s conviction would have been reversed on direct
appeal, even if Attorney D’Amato had objected on the
grounds that the petitioner now argues on appeal.
On the basis of the foregoing, we conclude that there
is no reasonable probability that an objection to joinder
would have changed the outcome of the petitioner’s
criminal trial.
II
The petitioner next claims that the habeas court erred
in concluding that his trial counsel had not provided
ineffective assistance in failing to object to opinion
testimony from a witness on an ultimate issue of fact
with respect to the criminal charges in one of the under-
lying criminal cases. Specifically, the petitioner claims
that he was prejudiced by Attorney D’Amato’s failure
to object to Knapp’s testimony in which Knapp
expressed her opinion that G was a victim of sexual
assault. The petitioner argues that this testimony
unfairly gave rise to an inference that he was guilty of
sexual assault. The respondent, the Commissioner of
Correction, argues that the habeas court properly deter-
mined that the petitioner had failed to prove that he
was prejudiced in light of the substantial circumstantial
evidence admitted at trial. We agree with the respon-
dent that the petitioner failed to demonstrate prejudice.9
The following additional facts are relevant to this
claim. During the state’s redirect examination of Knapp,
the prosecutor questioned Knapp about her experience
in conducting forensic interviews with children in child
sexual assault cases. Subsequently, the following
exchange occurred:
‘‘[The Prosecutor]: . . . The defense attorney asked
you what was in your mind as to whether or not [G]
was a victim . . . do you remember those questions?
‘‘[Knapp]: Yes, I do.
‘‘[The Prosecutor]: Now, [G] never says that the [peti-
tioner] did something bad to her, undisputed. Right?
‘‘[Knapp]: That is correct.
‘‘[The Prosecutor]: But in terms of . . . whether or
not [G] was a victim, does the fact that the [petitioner]
was convicted of having sexual intercourse with a four-
teen year old back in 2002 . . . does that inform your
thinking about whether or not [G] was a victim?
‘‘[Knapp]: Yes it does.
‘‘[The Prosecutor]: Okay. And how about the fact that
[G’s] sister, J, had said, I woke up and somebody was
cutting my underwear, the [petitioner], and he put his
penis through the hole and then [J] felt wet in [her]
butt. Does that inform your thinking as to whether or
not [G], who may not know it, is a victim?
‘‘[Knapp]: Yes.
‘‘[The Prosecutor]: And how about the fact that when
you go to the house there’s all these pairs of underwear
with holes cut in the crotch and crop—cut into the butt
area and . . . the [petitioner’s] semen’s in a bunch of
those holes; does that inform your thinking as to
whether or not you thought [G] was a victim?
‘‘[Knapp]: Yes, the totality of it all was very con-
cerning.
‘‘[The Prosecutor]: As you sit here right now, do you
think that [G] was a victim?
‘‘[Knapp]: My personal opinion?
‘‘[The Prosecutor]: That’s what you were asked about.
‘‘[Knapp]: Yes
‘‘[The Prosecutor]: Any—
‘‘[Knapp]: —I do.
‘‘[The Prosecutor]: —doubt? Well, I shouldn’t ask
that. Okay. That’s it. Thank you.’’
The habeas court concluded that the petitioner failed
to establish that he was prejudiced by Attorney
D’Amato’s failure to object to Knapp’s testimony with-
out deciding whether that failure constituted deficient
performance.10 The court found that there was substan-
tial evidence against the petitioner in the underlying
criminal case apart from Knapp’s testimony. We agree.
In the present case, Knapp was repeatedly questioned
during the state’s redirect examination regarding
whether she believed G was a victim. The petitioner
argues that Knapp’s testimony was unduly prejudicial
because there was no direct evidence of abuse in the
case involving G. This argument is similar to that made
by the petitioner in his direct appeal before this court.
In that appeal, the petitioner raised an insufficiency of
the evidence claim and argued that the evidence in G’s
case ‘‘merely establishe[d] that at some point G wore
the underwear, at some point a hole was cut in them,
and that at some point the [petitioner’s] semen was
wiped on the underwear. In addition, the [petitioner]
contend[ed] that [i]t is only after the state implores the
jury to consider J’s independent . . . testimony,
together with the [evidence of the petitioner’s prior
misconduct] from ten years earlier, that the state is able
to prevail with an argument . . . that the [petitioner]
must have had sexual contact with G.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Cancel, supra, 149 Conn. App. 96–97. This court rejected
the petitioner’s claim and concluded that, in light of
the evidence presented at trial, ‘‘the jury reasonably
could have inferred that the [petitioner] entered G’s
bedroom at night and cut holes in her underwear for
purposes of sexual gratification, just as he did with J.
. . . It also was reasonable for the jury to infer that
the [petitioner], when he cut holes in the area of G’s
underwear corresponding to her intimate parts, made
sexual contact with G’s intimate parts for the purposes
of sexual gratification. . . . Moreover, the jury reason-
ably could have inferred that either depositing semen
on a child’s underwear or entering a child’s bedroom
as she slept at night for purposes of cutting [holes in]
her underwear constituted a situation likely to impair
the morals of a child.’’ (Citations omitted.) Id., 98.
After reviewing the record, we conclude that, apart
from Knapp’s testimony, there was overwhelming evi-
dence against the petitioner in the underlying criminal
case involving G. ‘‘It is the province of the jury to draw
reasonable and logical inferences from the facts proved.
. . . It is not one fact, but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . .
There is no distinction between direct and circumstan-
tial evidence as far as probative force is concerned.’’
(Citations omitted.) State v. Perez, 183 Conn. 225, 227,
439 A.2d 305 (1981). The jury reasonably could have
relied on the statements by both J and G, the DNA
analysis that revealed the presence of the petitioner’s
semen on the inside and outside of G’s underwear and
clothing, the numerous pairs of G’s underwear and
pants with holes that had been cut by a sharp object
between the rear end and genital area, the independent
testimony from J that indicated she also had holes in
her underwear, and the videotape of J’s forensic inter-
view, to conclude that the petitioner had sexually
assaulted G just as he did with J. Moreover, even if
the cases involving G and J had not been joined, as
previously discussed in part I of this opinion, the evi-
dence in both cases was cross admissible as evidence
that the petitioner had a propensity to engage in the
sexual conduct with which he was charged.
Accordingly, because there was no reasonable proba-
bility that, had Attorney D’Amato successfully objected
to Knapp’s alleged opinion testimony that G was a vic-
tim of sexual assault, the result of the proceeding would
have been different, we conclude that the petitioner
failed to prove that he was prejudiced.
III
The petitioner next claims that the habeas court erred
in concluding that Attorney D’Amato had provided
effective assistance despite failing to present expert
testimony that could have offered an alternative inno-
cent explanation for the sexual assault allegations
against him. Specifically, the petitioner claims that
Attorney D’Amato’s failure to consult with a forensic
psychologist regarding the suggestive influence that
may have been present in J’s forensic interview, particu-
larly in light of J’s developmental issues and the ongoing
custody dispute between J’s mother and uncle, consti-
tuted deficient performance by which he was preju-
diced. The respondent argues that the petitioner failed
to prove that Attorney D’Amato’s performance was defi-
cient and that he suffered prejudice. We agree with
the respondent.
The following additional facts are relevant to this
claim. During the petitioner’s criminal trial, Knapp testi-
fied regarding her initial conversation with J at the
Waterbury police station prior to J’s forensic interview.
From her initial observation, Knapp became aware of
J’s developmental issues. In obtaining information from
children, the Waterbury Police Department’s guidelines
called for conducting forensic interviews with children
between the ages of three and nine, and typically taking
statements from children aged ten and older. Although
J was eleven years of age at the time of her complaint,
Knapp believed that a forensic interview was necessary
for J because of concerns with her cognitive abilities.
During their initial conversation, J had stated to Knapp,
without prodding, that the reason she was there was
because the petitioner had touched her where he was
not supposed to. The conversation lasted for approxi-
mately twenty-five minutes to one-half hour, and the
information that Knapp gleaned from J was consistent
with what Knapp had learned from other individuals.
Knapp also testified as to the Waterbury Police
Department’s general guidelines in conducting forensic
interviews and as to how J’s interview was conducted.
The forensic interview consisted of nonleading, nonsug-
gestive questions in a one-on-one environment. The
interview was conducted in a specialized room within
a facility that specializes in the behavioral health of
children and families. The forensic interviewer was a
child interview expert with the Waterbury Child Abuse
Interdisciplinary Team, which oversaw sexual assault
cases in the area. The interviewer and J were alone in
the room while law enforcement officials, including
Knapp, and department officials watched the interview
from the other side of a one-way mirror. The interview
was videotaped and audiotaped, which was standard
practice. Knapp also testified that she spoke with J’s
mother on the day following the forensic interview, and
that she had provided information that was consistent
with information that had been elicited during the foren-
sic interview.
During the habeas trial, Attorney D’Amato testified
that she did not consult with any expert witnesses in
preparation for the petitioner’s criminal trial, and that
she knew J had developmental issues and was enrolled
in special education classes. Attorney D’Amato had
reviewed J’s forensic interview, but did not consider
consulting with a forensic expert because it did not
seem necessary given the overwhelming evidence
against the petitioner, including the petitioner’s previ-
ous criminal history, the scissor cut holes in the under-
wear, evidence of the petitioner’s semen on G’s
underwear, and the independent statements from J and
G. Attorney D’Amato also had understood the role of
suggestibility in child sexual assault cases, and recalled
that she had seen J’s forensic interview several times
and that it did not seem to be suggestive or violate any
forensic interviewing protocols. Attorney D’Amato also
recalled that at the time of the petitioner’s trial there
had been a custody dispute between J’s mother and
uncle for custody of J.
The petitioner also presented the expert testimony
of Nancy Eiswirth, a forensic psychologist. Dr. Eiswirth
defined the concept of suggestibility and how it relates
to children, and described how individuals with lower
IQs tend to be more suggestible than others. Dr. Eisw-
irth testified that, generally, suggestibility is relevant in
the context of child allegations of sexual assault
because it helps with understanding how an allegation
came about. Specifically, a review of any preforensic
interview contacts that a child may have had is critical
to judging whether a question in an interview is leading.
Additionally, there is a tendency, particularly among
children with low IQs, to want to please or agree with
others, or to just answer a question even if they do not
understand it. Dr. Eiswirth also reviewed J’s forensic
interview. Dr. Eiswirth found that J’s statements during
her forensic interview regarding what may have hap-
pened when J was asleep were important because a
child may misinterpret what happens when that child
is asleep or in a dream state. Dr. Eiswirth also testified
that there was not much questioning during J’s forensic
interview about people she talked to, but acknowledged
that J had stated that she talked to her uncles, her
grandmother, and her mother, in addition to other peo-
ple. Dr. Eiswirth referenced several times that, during
the forensic interview, J had exhibited behavior that
indicated that she was trying to please the interviewer.
Dr. Eiswirth did not recall any questions that would
have ruled out suggestibility. Dr. Eiswirth noted several
instances that could have been indicative of suggestion,
such as J going to her sister’s room and talking to
her sister, and then subsequently speaking with the
department worker. Dr. Eiswirth, however, did not
make a determination about J’s level of suggestibility.
The habeas court concluded that Attorney D’Amato’s
failure to present testimony from a mental health expert
at the petitioner’s criminal trial did not constitute defi-
cient performance and that the petitioner had failed to
prove that he was prejudiced by such failure.
‘‘[J]udicial scrutiny of counsel’s performance must be
highly deferential. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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 presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . In reconstructing the
circumstances, a reviewing court is required not simply
to give [the trial attorney] the benefit of the doubt . . .
but to affirmatively entertain the range of possible rea-
sons . . . counsel may have had for proceeding as [he]
did . . . .’’ (Internal quotation marks omitted.) Bennett
v. Commissioner of Correction, 182 Conn. App. 541,
556–57, 190 A.3d 877, cert. denied, 330 Conn. 910, 193
A.3d 50 (2018).
Our Supreme Court has declined to adopt a bright
line rule that defense counsel must present an expert
witness in every sexual assault case. See Michael T. v.
Commissioner of Correction, 307 Conn. 84, 100–101,
52 A.3d 655 (2012). Moreover, this court has held in
cases involving child sexual assault that trial counsel’s
decision not to present expert witness testimony in
support of an alternative innocent explanation does not
necessarily constitute deficient performance when part
of a legitimate and reasonable defense strategy. See
Ricardo R. v. Commissioner of Correction, 185 Conn.
App. 787, 798, 198 A.3d 630 (2018), cert. denied, 330
Conn. 959, 199 A.3d 560 (2019); Grover v. Commis-
sioner of Correction, 183 Conn. App. 804, 821, 194 A.3d
316, cert. denied, 330 Conn. 933, 194 A.3d 1196 (2018).
On the basis of our review of the record and relevant
case law, we are not persuaded that Attorney D’Amato’s
decision not to present testimony from an expert wit-
ness constituted deficient performance. She was aware
of J’s developmental issues and of the role that suggest-
ibility could have in child sexual assault cases. After
reviewing the videotape of the forensic interview sev-
eral times and finding no suggestibility present, how-
ever, she determined that there was no legitimate
reason to retain an expert or pursue a suggestibility
defense strategy because of the overwhelming evidence
against the petitioner. She found, rather, that the best
strategy at trial was to focus on the defense that the
petitioner had not sexually assaulted or penetrated any-
one, and noted that the defense had obtained a not
guilty verdict on the charge of attempt to commit sexual
assault in the first degree.
Additionally, although Dr. Eiswirth provided testi-
mony on suggestibility in general and on the potential
for suggestibility in J’s forensic interview, she did not
make a determination that J was influenced during the
interview or that the interview was improperly con-
ducted. Rather, as demonstrated by Knapp’s testimony
at the petitioner’s criminal trial, the interview con-
formed to guidelines specified by the Waterbury Police
Department and was conducted in an impartial manner
by an expert in child sexual assault interviews. The
information obtained from the interview also was con-
sistent with information that Knapp had obtained from
other witnesses. As such, the petitioner has failed to
overcome the presumption that Attorney D’Amato’s
decision not to present the testimony of an expert, in
light of the other evidence presented, fell within the
wide range of reasonable professional assistance. See
Ricardo R. v. Commissioner of Correction, supra, 185
Conn. App. 800 (‘‘it was incumbent upon the petitioner
to overcome the presumption that, under the circum-
stances, [counsel’s] decision not to consult with an
expert was done in the exercise of reasonable profes-
sional judgment’’).
Accordingly, we conclude that Attorney D’Amato’s
decision not to present testimony from an expert in
forensic psychology, in pursuit of a theory of suggest-
ibility that supported a not guilty verdict, did not consti-
tute deficient performance. As such, we need not reach
the prejudice prong as to this claim.
IV
Finally, the petitioner claims that the habeas court
improperly concluded that his right to the effective
assistance of counsel was not violated due to Attorney
D’Amato’s absence from the petitioner’s presentence
investigation interview with a probation officer, who
thereafter prepared a report for the trial court. Specifi-
cally, the petitioner claims that his counsel’s allegedly
improper absence from the interview constituted defi-
cient performance and that he was prejudiced because
he had made harmful comments during the interview
that his counsel, if present, would have advised him not
to make and which adversely affected the subsequent
sentence handed down by the court. The petitioner also
claims that prejudice should be presumed because the
presentence investigation interview is a critical stage
of the proceedings, and his counsel’s absence consti-
tuted a complete denial of his right to effective assis-
tance of counsel under the sixth amendment. Because
we conclude that the presentence investigation inter-
view is not a critical stage of a criminal proceeding, the
petitioner was not entitled to the effective assistance
of counsel during this interview and, accordingly, we
agree with the habeas court’s rejection of this claim,
albeit on alternate grounds.
Attorney D’Amato provided uncontroverted testi-
mony that she inadvertently was absent from the peti-
tioner’s presentence investigation interview because
she had gotten lost on her way to MacDougall-Walker
Correctional Institution, where the interview took
place. During the petitioner’s sentencing, however,
Attorney D’Amato indicated that she and the petitioner
had discussed the interview and that she had reviewed
the presentence investigation report. Moreover, Attor-
ney D’Amato asked the court to strike any denials that
she believed the petitioner may have made during the
interview because she had not been present, even
though the petitioner had informed her that he did not
make any statements about what had happened during
the presentence investigation interview.11 The court did
not act on Attorney D’Amato’s request or refer to the
petitioner’s presentence investigation report during
sentencing.
After analyzing the petitioner’s claims under Strick-
land v. Washington, supra, 466 U.S. 687, the habeas
court found that trial counsel’s absence from the peti-
tioner’s presentence investigation interview did not
constitute deficient performance and that the petitioner
failed to prove prejudice.
A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of a criminal proceeding. See id., 686; see
also Gonzalez v. Commissioner of Correction, 308
Conn. 463, 470, 68 A.3d 624 (2013). As previously dis-
cussed, ‘‘[u]nder the two-pronged Strickland test, a
[petitioner] can only prevail on an ineffective assistance
of counsel claim if he proves that (1) counsel’s perfor-
mance was deficient, and (2) the deficient performance
resulted in actual prejudice. . . . To demonstrate defi-
cient performance, a [petitioner] must show that coun-
sel’s conduct fell below an objective standard of
reasonableness for competent attorneys. . . . To dem-
onstrate actual prejudice, a [petitioner] must show a
reasonable probability that the outcome of the proceed-
ing would have been different but for counsel’s
errors. . . .
‘‘Strickland recognized, however, that [i]n certain
[s]ixth [a]mendment contexts, prejudice is presumed.
. . . In . . . [United States v. Cronic, 466 U.S. 648,
659–60, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)] . . .
which was decided on the same day as Strickland,
the United States Supreme Court elaborated on the
following three scenarios in which prejudice may be
presumed: (1) when counsel is denied to a [petitioner]
at a critical stage of the proceeding; (2) when counsel
entirely fails to subject the prosecution’s case to mean-
ingful adversarial testing; and (3) when counsel is called
upon to render assistance in a situation in which no
competent attorney could do so. . . . This is an irrebut-
table presumption.’’ (Citation omitted; internal quota-
tion marks omitted.) Edwards v. Commissioner of
Correction, 183 Conn. App. 838, 843–44, 194 A.3d 329
(2018). In Cronic, the court reasoned that such situa-
tions indicate that ‘‘there has been a denial of [s]ixth
[a]mendment rights that makes the adversary process
itself presumptively unreliable.’’ United States v.
Cronic, supra, 659.
Our case law has recognized that, once the Cronic
presumption of prejudice applies, a petitioner has
asserted a valid claim of ineffective assistance of coun-
sel and his claim for relief under Strickland need not
be addressed. See Davis v. Commissioner of Correc-
tion, 319 Conn. 548, 568, 126 A.3d 538 (2015), cert.
denied sub nom. Semple v. Davis, U.S. , 136 S.
Ct. 1676, 194 L. Ed. 2d 801 (2016); Edwards v. Commis-
sioner of Correction, supra, 183 Conn. App. 839 n.1. In
Davis, our Supreme Court distinguished the effective
assistance of counsel analyses done under Strickland
and Cronic. Davis v. Commissioner of Correction,
supra, 556. Specifically, the court reasoned that ‘‘spe-
cific errors in representation, for which counsel can
provide some reasonable explanation, are properly ana-
lyzed under Strickland,’’ while ‘‘[c]ounsel’s complete
failure to advocate for a defendant . . . such that no
explanation could possible justify such conduct,’’ war-
rants the application of Cronic’s presumption of preju-
dice. Id. The court then turned to the merits of the
claim of ineffective assistance before it and conducted
an analysis under Cronic after concluding, in the habeas
context, that a complete breakdown in the adversarial
process had occurred. Id., 560–61. Although Cronic has
been appropriately applied in this manner, our state
jurisprudence has recognized that Cronic must be inter-
preted narrowly and applied rarely. See Taylor v. Com-
missioner of Correction, 324 Conn. 631, 649, 153 A.3d
1264 (2017).
In the present case, the petitioner claims that Attor-
ney D’Amato’s failure to attend the presentence investi-
gation interview constituted a complete breakdown in
the adversarial process, as it effectively deprived him
of counsel at a critical stage of his criminal proceeding.
Thus, he argues that his claim should be reviewed under
Cronic’s presumption of prejudice. As such, in order to
determine whether Cronic’s presumption of prejudice
applies in this case, we necessarily must determine
whether the presentence investigation interview is a
critical stage.
‘‘The central question in determining whether a par-
ticular proceeding is a critical stage of the prosecution
focuses on whether potential substantial prejudice to
the [petitioner’s] rights inheres in the . . . confronta-
tion and the ability of counsel to help avoid that preju-
dice.’’ (Internal quotation marks omitted.) Gonzalez v.
Commissioner of Correction, supra, 308 Conn. 479–80.
Connecticut courts have not yet considered whether a
presentence investigation interview is a critical stage
of a criminal proceeding. The petitioner urges this court
to rely on the decision of the Vermont Supreme Court
in In re Carter, 176 Vt. 322, 349, 848 A.2d 281 (2004),
which held that presentence investigation interviews
are a critical stage. In contrast, the respondent points
to a plethora of case law, both state and federal, in
which courts have either held that a presentence investi-
gation interview in a noncapital case is not a critical
stage or declined to determine that it is. See, e.g., United
States v. Archambault, 344 F.3d 732, 736 n.4 (8th Cir.
2003) (noting that sixth amendment does not apply
when defendant voluntarily participated in presentence
investigation and that no court has found that sixth
amendment right applies to routine presentence inter-
views); United States v. Tyler, 281 F.3d 84, 96 (3d Cir.
2002) (same); United States v. Tisdale, 952 F.2d 934,
939–40 (6th Cir. 1992) (‘‘[b]ecause the probation officer
does not act on behalf of the prosecution . . . a presen-
tence interview in a non-capital case is not a critical
stage . . . .’’ [internal quotation marks omitted]);
United States v. Hicks, 948 F.2d 877, 885–86 (4th Cir.
1991) (sentencing judges exercise independent discre-
tion in determining defendant’s sentence and denial of
counsel in this context is constitutionally insignificant);
United States v. Cortez, 922 F.2d 123, 128 (2d Cir. 1990)
(even assuming sixth amendment extends to presen-
tence interview, sixth amendment not violated where
defendant did not claim counsel was excluded from
interview or that defendant was forced to proceed with-
out counsel); State v. Kauk, 691 N.W.2d 606, 608–10
(S.D. 2005) (defendant’s right to counsel not violated
where counsel was absent from presentence interview);
People v. Cortijo, 291 A.D. 2d 352, 352, 739 N.Y.S.
2d 19 (presentence interview does not constitute stage
of proceedings at which right to counsel attaches), leave
to appeal denied, 98 N.Y.2d 674, 774 N.E.2d 228, 746
N.Y.S.2d 463 (2002).
The cases that recognize that the sixth amendment
does not apply to presentence interviews place an
emphasis on the voluntary nature of such interviews,
the sentencing judge’s independent discretion in sen-
tencing, and the probation officer’s role in sentence
determination. In re Carter, supra, 176 Vt. 348, distin-
guished itself from many of these cases by pointing out
that in the federal system, the probation officer is an
employee of the judicial branch, while in the Vermont
system, the probation officer who prepares the report
is an employee of the executive branch. Id. The court
reasoned that, unlike in the Vermont system, a proba-
tion officer in the federal system ‘‘is insulated from
political pressure and answers to no one but the sen-
tencing judge.’’ Id. Moreover, in concluding that presen-
tence interviews are a critical stage of the sentencing
process, In re Carter held that the right to counsel is
not limited to adversary proceedings. Id. In reaching
this decision, In re Carter states that ‘‘no [United States]
Supreme Court decision supports the rationale . . .
that the right to counsel is limited to proceedings with
an adversary character’’; (internal quotation marks
omitted) id., 346; and notes that federal case law’s reli-
ance on Kirby v. Illinois, 406 U.S. 682, 690, 92 S. Ct.
1877, 32 L. Ed. 2d 411 (1972), for the proposition that
a proceeding must have an adversarial character to be
a critical stage is misplaced. In re Carter, supra, 346 n.4.
We are not persuaded that the right to counsel at a
critical stage extends to nonadversarial proceedings.
According to Kirby v. Illinois, supra, 406 U.S. 689–90,
a critical stage of a criminal proceeding, or one in which
the sixth amendment right to counsel applies, occurs
when ‘‘the defendant finds himself faced with the prose-
cutorial forces of an organized society, and immersed
in the intricacies of substantive and procedural criminal
law.’’ Id., 689. On the basis of this language, it necessar-
ily follows that a proceeding must be adversarial in
nature in order to be considered a critical stage.
Courts that have considered the issue of whether a
defendant’s sixth amendment right to counsel applies
during a presentence interview have concluded that,
‘‘[b]ecause [a] probation officer does not act on behalf
of the prosecution . . . a presentence interview in a
non-capital case is not a critical stage within the mean-
ing of Kirby.’’ (Internal quotation marks omitted.)
United States v. Tisdale, supra, 952 F.2d 939; United
States v. Woods, 907 F.2d 1540, 1543 (5th Cir. 1990),
cert. denied, 498 U.S. 1070, 111 S. Ct. 792, 112 L. Ed.
2d 854 (1991); United States v. Jackson, 886 F.2d 838,
844–45 (7th Cir. 1989); see also In re Carter, supra, 176
Vt. 346. As such, whether a presentence interview is an
adversarial proceeding and, thus, a critical stage, largely
appears to rest on the role of the probation officer in
conducting the interview and whether the officer acts
independently of the prosecuting authority. In Connect-
icut, trial courts enlist the aid of probation officers to
investigate and make a report prior to sentencing. See
State v. Nacsin, 23 Conn. Supp. 214, 218–19, 180 A.2d
643 (1962) (‘‘The trial court properly enlisted the aid
of the family relations officer to make an investigation
and report prior to the imposition of sentence. . . .
There is a wide field open to the trial judge in obtaining
information, after conviction, relevant to mitigation or
aggravation of the seriousness of the offense.’’ [Citation
omitted; internal quotation marks omitted.). ‘‘The sole
purpose [of a presentence investigation] is to enable
the court, within limits fixed by statute, to impose an
appropriate penalty, fitting the offender as well as the
crime.’’ (Internal quotation marks omitted.) State v. Pat-
terson, 236 Conn. 561, 574, 674 A.2d 416 (1996). More-
over, under both federal and Connecticut law, ‘‘a
probation officer acts as an arm of the court’’ in prepar-
ing and submitting presentence reports. (Internal quota-
tion marks omitted.) Peay v. Ajello, 470 F.3d 65, 69 (2d
Cir. 2006).
On the basis of the foregoing, we conclude that there
was no denial of the petitioner’s sixth amendment right
to counsel during his presentence investigation inter-
view. We agree with the weight of authority that holds
that a presentence investigation interview is not a criti-
cal stage of a criminal proceeding because, as in the
federal system, a Connecticut probation officer is an
extension of the court and not an agent of the govern-
ment. Compare United States v. Jackson, supra, 886
F.2d 844, with Peay v. Ajello, supra, 470 F.3d 69. More-
over, like federal courts, Connecticut courts exercise
broad, independent discretion in imposing a sentence.
See State v. Patterson, supra, 236 Conn. 575 (‘‘[c]ourts
. . . are afforded equally broad discretion in imposing
a sentence when a [presentence investigation report is]
provided’’); State v. Nacsin, supra, 23 Conn. Supp. 219
(‘‘[t]he trial court was not obliged to follow the recom-
mendation of the family relations officer contained in
the report concerning the sentences to be imposed by
the court, and the failure to do so is not an abuse of
discretion’’). As such, we conclude that the presentence
investigation interview is not a critical stage of a crimi-
nal proceeding, and, thus, do not presume prejudice
as a result of Attorney D’Amato’s absence from the
petitioner’s interview.12
Accordingly, because we have concluded that the
presentence investigation interview is not a critical
stage of the petitioner’s criminal proceeding to which
the petitioner’s sixth amendment right to counsel
applies, he is not entitled to relief for any alleged ineffec-
tiveness of his trial counsel during the interview.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
2
The petitioner initially was arrested on the charges stemming from J’s
case. On August 5, 2009, after further police investigation, the petitioner
was arrested on charges stemming from G’s case.
3
On appeal, the petitioner did not raise in his brief the claims relating
to: inadequate research, investigation, or education; cross-examination,
impeachment, or challenging of the testimony of J, G, or their uncle; pursuit
of the production and disclosure of confidential and privileged materials
related to J; or the presentation of evidence of a custody dispute between
J’s mother and J’s uncle. Accordingly, these claims are deemed to be aban-
doned. See Walker v. Commissioner of Correction, 176 Conn. App. 843,
856–57, 171 A.3d 525 (2017).
4
If evidence of one incident can be admitted at the trial of another incident,
such evidence is said to be cross admissible. See State v. LaFleur, 307 Conn.
115, 155, 51 A.3d 1048 (2012); State v. Pollitt, 205 Conn. 61, 68, 530 A.2d
155 (1987).
5
In State v. Boscarino, supra, 204 Conn. 722–24, our Supreme Court first
articulated the factors that a trial court must consider when deciding whether
it is appropriate to join two separate yet factually related cases for trial
when evidence in the cases are not cross admissible. The court determined
that joinder of such cases is unduly prejudicial to the defendant and, thus,
improper, if (1) the cases do not involve discrete, easily distinguishable
factual scenarios, (2) the crimes in the cases were of a particularly violent
nature or concerned brutal or shocking conduct on the defendant’s part,
and (3) the trial was lengthy and complex. Since that decision, our Supreme
Court consistently has applied the Boscarino factors in determining when
joinder is proper. See State v. Ellis, 270 Conn. 337, 375–76, 852 A.2d 676
(2004); see also State v. Payne, 303 Conn. 538, 550, 34 A.3d 370 (2012).
6
Although our Supreme Court in State v. Payne, supra, 303 Conn. 550,
shifted to the state the burden of proving whether joinder is appropriate in
cases in which charges are set forth in separate informations, such as in
the present case, the court also noted that this rule of law would not apply
retroactively in habeas proceedings. See id., 550 n.10. The petitioner argues,
nonetheless, that Payne governs the analysis of the issue of joinder that he
raised in his direct appeal and, thus, that there was a reasonable probability
that, had Attorney D’Amato properly preserved the issue for appellate
review, the petitioner’s convictions would have been reversed on direct
appeal. The petitioner’s claim before this court, however, alleges that his
trial counsel failed to litigate adequately the joinder issue at the time of his
criminal trial.
As previously discussed, our case law at the time of the petitioner’s
criminal trial recognized a clear presumption in favor of joinder. See State
v. Ellis, supra, 270 Conn. 375. Attorney D’Amato decided not to object to
joinder on the basis of the law as it existed at the time of the petitioner’s
criminal trial. To conclude, on the basis of Payne, that the petitioner was
prejudiced by his counsel’s alleged failure to adequately litigate the joinder
issue at his criminal trial would be tantamount to requiring Attorney D’Amato
to have argued legal principles not yet established at the time of that trial.
We decline to endorse such a proposition.
7
This court may sustain a correct decision although it may have been
decided on an incorrect ground. See Tyson v. Commissioner of Correction,
155 Conn. App. 96, 105, 109 A.3d 510, cert. denied, 315 Conn. 931, 110 A.3d
432 (2015).
8
‘‘Uncharged misconduct refers to the conduct of the accused that is not
charged in the information; it refers to the accused’s conduct not related
to the trial, whether or not charged in another case.’’ E. Prescott, Tait’s
Handbook of Connecticut Evidence (6th Ed. 2019) § 4.15.5 (a), p. 173.
9
The habeas court did not make a finding of fact with respect to the
deficient performance prong in this claim. Additionally, neither party makes
an argument in their respective briefs before this court regarding the perfor-
mance prong. Accordingly, we do not address it.
10
It is well established that ‘‘[n]o witness, lay or expert, may testify to
his opinion as to the guilt of a defendant, whether by direct statement or
reference. . . . In general, [t]estimony is objectionable if it embraces an
opinion on the ultimate issue to be decided by the trier of fact. . . . Whether
a statement of a witness is one of fact or of conclusion or opinion within
the rule excluding opinion evidence is to be determined by the substance
of the statement rather than its form. The use of phraseology appropriate
to the expression of an inference, such as believe, think, etc., may in fact
signify an opinion which renders the statement inadmissible; but the use
of such terms is not conclusive that the witness is stating his opinion, for
the language may be used merely to indicate that he is not speaking with
entire certainty, in which case the evidence may be received for what it is
worth.’’ (Citations omitted; internal quotation marks omitted.) State v. Fuller,
56 Conn. App. 592, 619–20, 744 A.2d 931, cert. denied, 252 Conn. 949, 748
A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000).
‘‘An opinion, by definition, consists of [e]vidence of what the witness thinks,
believes, or infers in regard to facts in dispute.’’ (Internal quotation marks
omitted.) Hayes v. Decker, 66 Conn. App. 293, 301, 784 A.2d 417 (2001),
aff’d, 263 Conn. 677, 822 A.2d 228 (2003).
11
The denial of guilt that the petitioner claims he made during the presen-
tence investigation interview was not made during that interview, but, rather,
during a sex offender evaluation interview that took place in October, 2011,
after the petitioner was convicted. A report of the sex offender evaluation
interview was provided to the probation officer and included in the presen-
tence investigation report.
12
Our rules of practice also indicate that counsel’s presence at a presen-
tence investigation interview is permitted, not required; see Practice Book
§ 43-5; and ‘‘[o]ur case law establishes . . . that a failure to comply with
procedures set forth under the rules of practice or the statutes relating to
presentence reports does not necessarily, in and of itself, establish a violation
of due process.’’ State v. Parker, 295 Conn. 825, 846, 992 A.2d 1103 (2010).