Ruiz v. Commissioner of Correction ( 2020 )

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JESUS RUIZ v. COMMISSIONER OF CORRECTION
(AC 41947)
Alvord, Bright and Flynn, Js.
Syllabus
The petitioner, who had been convicted of sexual assault in the first degree,
sexual assault in the fourth degree and risk of injury to a child, sought
a writ of habeas corpus, claiming that his trial counsel had provided
ineffective assistance. He claimed, inter alia, that his trial counsel were
deficient in representing him at a pretrial hearing on a motion in limine
filed by the state, which sought permission to videotape the testimony
of the child victim in the petitioner’s absence, pursuant to State v.
Jarzbek (204 Conn. 683). The habeas court rendered judgment denying
the petition, from which the petitioner, on the granting of certification,
appealed to this court. The habeas court had found that the petitioner
failed to show that he was prejudiced by the allegedly deficient perfor-
mance of his trial counsel. This court thereafter reversed in part the
habeas court’s judgment and remanded the case to the habeas court
for further proceedings. This court concluded that the habeas court’s
prejudice analysis was improper. This court’s remand order directed
the habeas court to consider prejudice and, if necessary for the ultimate
resolution of the petitioner’s ineffective assistance claim, to consider
the petitioner’s allegations of deficient performance. Thereafter, on
remand, the habeas court denied the petition for a writ of habeas corpus,
from which the petitioner, on the granting of certification, appealed to
this court. He claimed, inter alia, that the habeas court improperly
concluded that his right to effective assistance of counsel was not vio-
lated by the performance of his trial counsel in challenging the reliability
of the state’s witness, G, at the Jarzbek hearing. Held that the habeas
court correctly determined that the petitioner failed to demonstrate
deficient performance of his trial counsel: trial counsel challenged G’s
testimony on multiple grounds, including, inter alia, reliability and G’s
qualifications; moreover, trial counsel’s performance was not deficient
for not asking specific questions or inquiring more extensively into
certain areas, as the cross-examination strategy was tactical in nature
and this court would not second-guess counsel’s strategy; furthermore,
trial counsel’s failure to present the testimony of a defense expert at
the Jarzbek hearing was not deficient performance, as the trial court
had denied the petitioner’s motion to have the expert interview the
victim pursuant to State v. Marquis (241 Conn. 823), and counsel’s
decision not to present that testimony without the court having granted
the Marquis motion constituted sound trial strategy.
Argued October 21, 2019—officially released February 18, 2020
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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court, DiPen-
tima, C. J., and Sheldon and Flynn, Js., which reversed
in part the judgment of the habeas court and remanded
the case for further proceedings; subsequently, the
court, Kwak, J., denied the petition and rendered judg-
ment thereon, and the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Vishal K. Garg, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Rebecca A. Barry, supervisory assistant state’s
attorney, and David Clifton, assistant state’s attorney,
for the appellee (respondent).
Opinion
FLYNN, J. The petitioner, Jesus Ruiz, appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. On appeal, the petitioner
claims that the court improperly concluded that his
right to effective assistance of counsel was not violated
by the performance of his trial counsel in challenging
the reliability of the state’s witness at a pretrial hearing
on the state’s motion in limine seeking permission to
videotape the testimony of the child victim, N,1 in the
petitioner’s absence pursuant to State v. Jarzbek, 204
Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S.
1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).2 We affirm
the judgment of the habeas court.
This appeal comes to us following a remand by this
court in Ruiz v. Commissioner of Correction, 156 Conn.
App. 321, 113 A.3d 485, cert. denied, 319 Conn. 923, 125
A.3d 199 (2015), and cert. granted, 319 Conn. 923, 125
A.3d 199 (2015) (appeal withdrawn January 28, 2016),
directing the habeas court to conduct further proceed-
ings relating to the petitioner’s claims of ineffective
assistance of trial counsel at a Jarzbek hearing.
At the outset of this procedurally complex case, we
briefly discuss the legal principles underlying a Jarzbek
hearing. In certain circumstances, the videotaping of the
testimony of an alleged child victim of sexual assault,
outside the physical presence of the defendant, is con-
stitutionally permissible. See State v. Jarzbek, supra,
204 Conn. 704–705; see also General Statutes § 54-86g
(a). In deciding whether the state has met its burden
of establishing, by clear and convincing evidence, a
compelling need to exclude the defendant, the trial
court balances, on a case-by-case basis, the defendant’s
sixth amendment right of confrontation with the state’s
interest in obtaining reliable testimony. See State v.
Jarzbek, supra, 704–05. To demonstrate a compelling
need, the state must show that the trustworthiness of
the testimony of the child complainant seriously would
be called into question because he or she would be
so intimidated, or otherwise inhibited, by the physical
presence of the defendant. See id.
We do not repeat all of the underlying facts concern-
ing the petitioner’s sexual abuse3 of N, set forth in this
court’s opinion in the petitioner’s direct appeal from
his conviction. See State v. Ruiz, 124 Conn. App. 118,
120, 3 A.3d 1021, cert. denied, 299 Conn. 908, 10 A.3d
525 (2010). The relevant facts and procedural history
set forth on direct appeal concerning the Jarzbek hear-
ing are as follows: ‘‘The state filed a motion to videotape
N’s testimony outside the presence of the [petitioner]
pursuant to § 54-86g (a) and State v. Jarzbek, supra, 204
Conn. 704–705. The court held a hearing to determine
whether N had the ability to testify reliably in the pres-
ence of the [petitioner]. Pamela Goldin, a licensed clini-
cal social worker employed by the Child Guidance
Clinic for Central Connecticut, Inc., for more than
twenty-seven years, testified that she had been treating
N for two years. According to Goldin, N has ‘weak
language skills,’ ‘[h]er ability to express herself is below
average for her age,’ she has poor self-esteem, she
becomes ‘overwhelmed with anxiety’ and she is ‘very
easily intimidated.’
‘‘Goldin discussed a specific experience with N. She
testified that N was distraught that her mother did not
believe the accusations that she had made about the
[petitioner]. When Goldin and N prepared for a session
at which N’s mother also would be present, Goldin
testified that N talked at length about all the things
she wanted to make sure she told her mother. Goldin
testified that N ‘froze’ when the time came for N to
speak to her mother. She could not speak and said very
little of what she wanted to say, even though she was
in a ‘secure, familiar setting with a number of people
there with whom she was comfortable and felt sup-
ported.’ Goldin testified that this behavior occurred at
two separate sessions. She testified that during her
work with N, she and N discussed the allegations that
N had made against the [petitioner] ‘so that if she
wanted to discuss at length what happened with [the
petitioner] that she could. And she did tell me a little
bit, but she was clearly uncomfortable discussing it at
great length. And I didn’t press her.’ She stated that
testifying in the [petitioner’s] presence, in addition to
being a ‘real hardship for [N]’ that would ‘set her back
emotionally,’ would cause N to ‘freeze.’ Goldin testified:
‘I don’t think she’d speak—I think she’d just be totally
intimidated.’ ‘I doubt that she would . . . speak in the
way that people are going to need her to speak in order
to give the information you’ll be asking of her.’
‘‘Following the hearing, the [trial] court found: ‘[Gol-
din] observed [the] child for almost two years. How [N]
reacts when this incident would come up. How, when
she confronted the mother, she became [mute and] left
the room. . . . [K]nowing this young girl for two years,
[Goldin testified that N] could not testify truthfully and
reliably in front of the [petitioner]. [Goldin gave] her
reasons why, based upon her anxiety level, she’d be
frightened, she’d be intimidated, her lower level of edu-
cation, her low level of esteem . . . . I find [that] the
state has met its burden by clear and convincing evi-
dence pursuant to Jarzbek. . . . [Goldin] also said that
[N] would be so stressed . . . I just can’t take two
years of treatment and ignore it. She didn’t meet this
young girl a week or a month ago.’ Accordingly, the
court granted the state’s motion.’’ (Footnote omitted.)
Id., 122–24.
On direct appeal, the petitioner claimed, inter alia,
that the trial court improperly had permitted N to testify
outside the petitioner’s presence because the state had
failed to show, by clear and convincing evidence, that
N’s testimony would have been less reliable if she had
been required to testify in the petitioner’s presence.
Id., 121–22. The petitioner also claimed that his sixth
amendment right to confrontation had been violated.
Id., 122. This court disagreed with the petitioner and
concluded that ‘‘the [trial] court’s finding that the state
showed, by clear and convincing evidence, that if N
testified in the [petitioner’s] presence, her testimony
would be less reliable or accurate was not clearly erro-
neous. The [petitioner’s] right to confrontation is not
violated when the state makes that showing.’’ Id.,
127–28.
The petitioner filed the operative petition for a writ
of habeas corpus on October 2, 2012. The claim relevant
to this appeal is that the petitioner’s trial counsel, John
Ivers and Robert Casale,4 provided ineffective assis-
tance at the Jarzbek hearing by failing to (1) conduct
an adequate cross-examination of the state’s expert wit-
ness, and (2) present an expert witness. The habeas
court, Sferrazza, J., denied the claim and, in so doing,
addressed only the prejudice prong of Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
On appeal from the court’s decision in the first habeas
proceeding, the petitioner claimed, inter alia, that the
court improperly rejected his claim that his trial counsel
had rendered ineffective assistance at the Jarzbek hear-
ing. See Ruiz v. Commissioner of Correction, supra,
156 Conn. App. 327. This court concluded that the first
habeas court’s prejudice analysis was improper but dis-
agreed ‘‘with the petitioner’s contention that a presump-
tion of prejudice arises any time the right to confronta-
tion is violated.’’ Id., 328. Instead, this court held that
the prejudice analysis of the first habeas court was
improper because it focused on whether the witness’
testimony would have been different had confrontation
occurred. Id., 337. This court held that ‘‘this case must
be remanded to the habeas court for consideration of
prejudice . . . and, if necessary for the ultimate resolu-
tion of the petitioner’s ineffective assistance claim, con-
sideration of the petitioner’s allegations of deficient
performance, and any applicable special defenses filed
by the respondent, the Commissioner of Correction.’’
Id., 338.
On remand from this court, the second habeas court,
Kwak, J., rejected the petitioner’s claim that his trial
counsel rendered ineffective assistance during the Jarz-
bek hearing. Concerning the cross-examination of Gol-
din, the court found: ‘‘Goldin’s testimony during the
Jarzbek hearing was not extensive, spanning less than
thirty pages. . . . Goldin, who has a master’s degree
in social work and had been employed as a licensed
clinical social worker for approximately three decades,
had a therapeutic relationship with N. Goldin treated
N for approximately two years preceding the Jarzbek
hearing. Attorney Ivers conducted voir dire, raised
objections on direct examination, and conducted cross-
examination of Goldin. The cross-examination elicited
from Goldin that her therapeutic relationship came
about through efforts to assist N to deal with her prob-
lems, in particular with her estranged mother. However,
N eventually also discussed the sexual abuse during
their sessions. The discussions regarding the sexual
abuse and the petitioner were a minor component of
the therapeutic sessions. Attorney Ivers effectively
highlighted through his questioning that the therapeutic
sessions primarily focused on N and her mother.
According to Goldin, N was very nervous and concerned
about potentially testifying in juvenile court proceed-
ings and the criminal case. Attorney Ivers also elicited
from Goldin that there are no professional guidelines
to follow when determining if a child is too intimidated
to testify, that it is a ‘judgment call’ by the person
assessing the child.’’ (Citation omitted.)
The second habeas court further found: ‘‘The peti-
tioner contends that counsel failed to adequately cross-
examine, impeach, and otherwise challenge the testi-
mony of . . . Goldin during the Jarzbek hearing. The
evidence presented to the prior habeas court and this
court does not support that contention. A careful review
of the transcripts from the prior habeas proceedings
and the testimony presented to this court after the
remand fail to show how counsel was deficient. Nor
has the petitioner demonstrated what counsel should
have done differently in the cross-examination of Gol-
din, nor has the petitioner proven that counsel could
have more effectively impeached and challenged Gol-
din’s Jarzbek testimony. The petitioner failed to prove
that Goldin was not qualified to conduct the evaluation,
that she did not conduct an adequate evaluation, and
that her opinions were not reliable.’’
The second habeas court concluded: ‘‘It has already
been established that the trial court’s ruling after the
Jarzbek hearing, which permitted the videotaped testi-
mony of N in the petitioner’s absence, was based on
clear and convincing evidence presented by the state
and not clearly erroneous. State v. Ruiz, supra, 124
Conn. App. 127–28. . . . After reviewing the Jarzbek
hearing transcript, this court concludes that counsel’s
performance did not fall below that of a reasonably
competent criminal defense attorney. . . . Based upon
the foregoing, the court concludes that the petitioner
has failed to prove that Goldin was not qualified to
conduct the evaluation, that she did not conduct an
adequate evaluation, that her opinions were unreliable,
and that it was necessary for the defense to conduct
an evaluation of N. The court further concludes that
there is no evidence that trial counsel rendered deficient
performance regarding the Jarzbek hearing.’’ (Citations
omitted.) The court further concluded that the peti-
tioner had failed to prove the prejudice prong of Strick-
land v. Washington, supra, 466 U.S. 668. The court
granted the petitioner’s certification to appeal. This
appeal followed.
The following standard of review is applicable. To
succeed on his claim of ineffective assistance of coun-
sel, the petitioner must demonstrate both that (1) his
trial counsel made errors so serious that they were
not functioning as counsel as guaranteed by the sixth
amendment to the United States constitution, and (2)
there is a reasonable likelihood that the result would
have been different but for counsel’s unprofessional
errors. See Small v. Commissioner of Correction, 286
Conn. 707, 712–13, 946 A.2d 1203, cert. denied sub nom.
Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed.
2d 336 (2008). A court may decide against the petitioner
on either ground. See id., 713. When determining
whether the representation received by the petitioner
was constitutionally adequate, we employ a plenary
standard of review. Hickey v. Commissioner of Correc-
tion, 329 Conn. 605, 617, 188 A.3d 715 (2018).
The petitioner claims that the court improperly con-
cluded that his trial counsel did not perform deficiently
during the Jarzbek hearing. He argues that his trial
counsel failed to undermine adequately the reliability
of Goldin’s conclusion that N was unable to testify
reliably in the petitioner’s presence. He contends that
the combination of counsel’s failure to adequately
impeach, cross-examine, and challenge Goldin’s testi-
mony and the failure to present expert testimony to
undermine Goldin’s testimony constituted deficient per-
formance. We disagree.
We first address the petitioner’s argument that his
trial counsel failed to conduct an adequate impeach-
ment, cross-examination, and challenge of the reliability
of Goldin’s testimony. He lists five areas of claimed
importance, of which he contends trial counsel were
deficient for failing to either inquire into or inquire into
more extensively: Goldin’s role as N’s therapist was
antithetical to conducting an independent evaluation
necessary for a Jarzbek assessment; Goldin failed to
engage in therapy to assist N in testifying in the petition-
er’s presence; Goldin failed to conduct an adequate
background assessment of N’s ability to speak in the
petitioner’s presence; Goldin’s opinion was not based
on scientific method; and Goldin lacked the qualifica-
tions necessary to conduct a Jarzbek assessment. The
petitioner stresses that his argument hinges on trial
counsel’s failure to challenge adequately the reliability,
not the admissibility, of Goldin’s testimony.
After carefully reviewing the record, we agree with
the conclusion of the second habeas court that the
petitioner has failed to demonstrate that his trial coun-
sel’s performance was deficient. Trial counsel chal-
lenged Goldin’s testimony on multiple grounds, includ-
ing that Goldin’s therapy sessions with N were focused
on N’s personal life and her relationship with her mother
rather than her relationship with the petitioner; Goldin
based her opinion on two therapy sessions wherein N
tried to talk to her mother, not the petitioner; Goldin’s
assessment was based on N’s personal difficulties
rather than on her ability to testify reliably in the peti-
tioner’s presence; Goldin had not been educated in
forensic analysis in sexual assault cases; and Goldin
did not conduct a special meeting with N to determine
if N could testify in the petitioner’s presence.
The record reveals that counsel thoroughly chal-
lenged the reliability of Goldin’s testimony. The peti-
tioner, however, in hindsight, argues that counsel
should have asked certain questions and should have
inquired more extensively in certain areas. What the
petitioner’s argument fails fully to appreciate is that
there are many ways to provide effective assistance of
counsel and that we not only give counsel the benefit of
the doubt, but we affirmatively must entertain possible
reasons for why counsel may have proceeded as they
did. See Meletrich v. Commissioner of Correction, 332
Conn. 615, 637, 212 A.3d 678 (2019).
The petitioner argues that counsel did not effectively
show that Goldin had failed to conduct an adequate
background evaluation. He specifically argues that Gol-
din did not seek out information regarding N’s behavior
toward the petitioner during the time period from when
the abuse occurred to when N reported the abuse.
Although counsel did not specifically inquire into N’s
behavior toward the petitioner, reasonable explana-
tions exist for this decision. Counsel could have deter-
mined that N’s behavior toward the petitioner prior to
her revealing the abuse was not especially relevant,
particularly in light of Goldin’s testimony on direct
examination as to N’s emotional state regarding the
possibility of seeing the petitioner in court. Goldin testi-
fied that N was ‘‘very frightened’’ about testifying in
court and was ‘‘anxious’’ about seeing the petitioner
again.
The petitioner contends that counsel were deficient
in failing to show that Goldin had failed to engage in
therapy to assist N in testifying in the petitioner’s pres-
ence. The petitioner argues that such an inquiry is nec-
essary to make a proper Jarzbek assessment according
to State v. Bronson, 258 Conn. 42, 55, 779 A.2d 95 (2001).
The petitioner misinterprets Bronson, which is factually
dissimilar to the present case. In Bronson, when the
victim was questioned on direct examination regarding
the sexual assault, she began crying and was removed
from the courtroom by her advocate. Id., 47. The state
had represented to the court that the victim’s therapist
had opined, prior to the victim taking the stand, that
the victim would be able to testify, and a Jarzbek hear-
ing was not requested before trial. Id., 47 n.6. At the
state’s request, the court held a Jarzbek hearing shortly
after the victim was removed from the stand, wherein
the victim’s father testified that she was uncomfortable,
and the victim’s advocate testified that the victim was
‘‘mad’’ at the defendant and scared to return to the
courtroom. (Internal quotation marks omitted.) Id., 54–
55. Based on this testimony, the court denied defense
counsel’s motion for an expert evaluation of the victim
and ordered the victim’s testimony to be videotaped.
Id., 49.
Our Supreme Court held that the trial court had
abused its discretion in denying the defendant’s motion
for an expert evaluation and reasoned that the evidence
relied on by the trial court came from persons interested
in the victim’s needs, that there was no inquiry into
whether the victim could recover during the weekend,
and that the circumstances that occurred were not suffi-
cient to rebut her therapist’s opinion that she was able
to testify. Id., 55. Under those specific facts, the court
concluded that the trial court abused its discretion in
denying the defendant’s request for a second expert to
assess the victim’s ability to testify in his presence. Id.
In the present case, however, a Jarzbek hearing was
conducted in advance of N’s testimony and Goldin testi-
fied that N would be ‘‘frightened’’ and ‘‘intimidated’’
and thus unable to testify reliably in the petitioner’s
presence. There was no requirement that Goldin con-
duct therapy sessions to assist N to testify, and a failure
to do so does not negate her opinion.
The petitioner also argues that trial counsel failed to
challenge Goldin’s testimony on the ground that her
opinion was not based on scientific method and that she
lacked the qualifications necessary to make a Jarzbek
assessment. Our Supreme Court in State v. Spigarolo,
210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933,
110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), established that
expert opinion evidence is not necessary and that no
special qualifications are necessary for a witness to
testify at a Jarzbek hearing. In Spigarolo, the court
held that the trial court did not abuse its discretion in
admitting the testimony of the victims’ father and his
wife that, based on their observations of the victims’
behavior following the sexual abuse, the victims would
be less candid if they were to testify in the defendant’s
presence. Id., 369–71. The court concluded that: ‘‘The
family or guardians of a sexually abused child obviously
occupy a unique position to assess the mental and emo-
tional impact of a courtroom confrontation on the
minor. We have no doubt that the testimony of such
individuals may provide critical insight on a minor’s
ability or inclination to speak truthfully in the physical
presence of an alleged perpetrator. We therefore refuse
to construe Jarzbek as requiring the state to present
expert testimony in order to meet its burden of proof.’’
Id., 372. If the victims’ father and his wife in Spigarolo
were able to provide ‘‘critical insight’’ on the victims’
ability to testify reliably based on their observations of
the victims’ emotional and mental states despite that
parent/child relationship, then, a fortiori, Goldin, as N’s
therapist, who had treated N for two years, had the
requisite knowledge of N to offer testimony as to the
ability of N to testify in the petitioner’s presence. Gol-
din’s testimony at the second habeas proceeding
revealed that her impression of N’s emotional state was
based on her interactions with and observations of N
made during therapy sessions. Goldin testified that she
‘‘used [her] knowledge of the client and [her] experience
in treatment with [N]’’ to arrive at her assessment that
N would be unable to testify in the petitioner’s presence.
Her testimony revealed that the primary basis for her
conclusion was N’s anxiety, low self-esteem, and an
inability to explain to her mother, who had tried to
make N recant her allegations of sexual abuse, her
feelings regarding ‘‘everything that had happened’’
despite being in a supportive environment and wanting
to do so.
Counsel, nevertheless, challenged the reliability of
Goldin’s testimony from the viewpoint of her qualifica-
tions. Counsel elicited from Goldin that there are no
guidelines in her profession for assessing whether a
child could testify reliably in the presence of a defen-
dant, and that her opinion was a ‘‘judgment call.’’ Goldin
further testified on cross-examination that, although
she addressed N’s ability to testify in the petitioner’s
presence during a therapy session, she did not conduct
a special meeting for that purpose. During voir dire of
Goldin at the start of the Jarzbek hearing, counsel elic-
ited testimony that she had not been educated in foren-
sic analysis for sexual assault cases.
The petitioner argues that counsel failed to challenge
Goldin’s testimony on the basis that her role as N’s
therapist was antithetical to conducting an independent
evaluation that was necessary to make an accurate Jar-
zbek assessment. The petitioner highlights the testi-
mony of Goldin at the second habeas proceeding that
it was antithetical to her role as N’s therapist to try to
push N to testify in the petitioner’s presence and, that
if she did so, N likely would have lost trust in Goldin.
The trial court, however, was aware of Goldin’s role as
N’s therapist and counsel adequately established on
cross-examination that Goldin had a close professional
relationship with N. On direct examination, Goldin testi-
fied that N was frightened and anxious to speak in court
in the petitioner’s presence, that she already had relayed
the events of the sexual assault to multiple individuals
and did not want to do so again. On cross-examination,
Goldin answered the following question of counsel
affirmatively: ‘‘Your job was to do the best you could
to help [N] get over whatever problems she was going
through.’’ The court sufficiently was aware of any bias in
N’s favor that a therapeutic connection might engender.
Defense counsel attempted to undermine Goldin’s testi-
mony by objecting to the state’s question asking Goldin
for her opinion as to whether N would be able to partici-
pate in the court proceedings, on the ground that the
question called for a forensic conclusion and that Gol-
din’s connection with N was with respect to ‘‘basic
therapy’’ and was not for the purpose of ‘‘a forensic
evaluation.’’ Furthermore, the court was aware of State
v. Spigarolo, supra, 210 Conn. 372, in which our
Supreme Court held that the parents of the victims
brought ‘‘insight’’ to the question of whether the victims
could testify reliably in the presence of the alleged
perpetrator. See State v. Outlaw, 179 Conn. App. 345,
353, 179 A.3d 219 (in absence of contrary evidence,
judges presumed to know law and apply it correctly),
cert. denied, 328 Conn. 910, 178 A.3d 1042 (2018).
The petitioner’s argument is grounded in the notion
that counsel should have asked certain questions and
should have inquired into other areas more deeply. Ivers
testified at the first habeas proceeding that part of his
strategy was to highlight that Goldin’s sessions with N
primarily concerned N’s relationship with her mother,
not the petitioner, and therefore the state could not
meet its burden. Ivers cross-examined Goldin on this
point, and his decision to not ask questions that the
petitioner on appeal now deems relevant does not estab-
lish deficient performance. A claim such as this, which
concerns the ambit of cross-examination, falls short
of establishing deficient performance. See Velasco v.
Commissioner of Correction, 119 Conn. App. 164, 172,
987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d
1289 (2010). ‘‘An attorney’s line of questioning on exami-
nation of a witness clearly is tactical in nature. [As such,
this] court will not, in hindsight, second-guess counsel’s
trial strategy. . . . The fact that counsel arguably could
have inquired more deeply into certain areas, or failed
to inquire at all into areas of claimed importance, falls
short of establishing deficient performance.’’ (Citation
omitted; internal quotation marks omitted.) Id. Trial
counsel’s line of questioning of Goldin during cross-
examination at the Jarzbek hearing was tactical in
nature and we will not second-guess counsel’s strategy.
The petitioner argues that his trial counsel’s errors
in cross-examination of Goldin were compounded by
his counsel’s failure to present the testimony of David
Mantell, a forensic psychologist, at the Jarzbek hearing,
in order to challenge the reliability of Goldin’s testi-
mony. He contends that the court improperly concluded
that counsel’s failure to present the testimony of Mantell
did not constitute deficient performance. He further
argues that Mantell would have testified as to the proper
procedure by which to determine whether a complain-
ant could testify reliably, demonstrating that Goldin did
not conduct an adequate evaluation and that she was,
therefore, unreliable. We are not persuaded.
Trial counsel filed in the trial court a motion pursuant
to State v. Marquis, 241 Conn. 823, 699 A.2d 893 (1997),
seeking to have N examined by the petitioner’s expert.
Following the Jarzbek hearing, the trial court deter-
mined that the state had met its burden under Jarzbek.
It denied the Marquis motion, reasoning that Goldin
had a two year therapeutic relationship with N, which
it was not willing to ignore, and that to have N examined
pursuant to a Marquis motion would further traumatize
and intimidate N.
Ivers testified at the first habeas proceeding that he
had contacted Mantell prior to the Jarzbek hearing and
that his strategy was to file a Marquis motion so that
Mantell could examine N to see whether she would be
able to testify reliably in the presence of the petitioner.
Ivers stated that he eventually retained Mantell. Mantell
testified before both habeas courts. Regarding Mantell’s
testimony, Judge Kwak stated: ‘‘Dr. Mantell also testi-
fied before this court. . . . Dr. Mantell reiterated his
criticism of the therapeutic relationship between Goldin
and N, and how that relationship resulted in Goldin’s
Jarzbek assessments being too subjective because she
was advocating for N, her patient/client. A forensic
assessment such as one Dr. Mantell would have con-
ducted on N, according to his testimony, would have
been more objective and not influenced by therapeutic
goals. Dr. Mantell described his own protocol for Jarz-
bek assessments, as well as steps that can be taken,
including therapeutic treatment, to assist a child to
become capable of testifying in a defendant’s presence
when the initial conclusion is to the contrary. Because
Dr. Mantell has never conducted an assessment of N,
he acknowledged that he cannot form an opinion
whether or not N would have been able to testify reliably
in the petitioner’s presence.’’ (Citation omitted.)
It is the petitioner’s burden to overcome the strong
presumption that his trial counsel’s conduct constituted
sound trial strategy that falls within the wide range of
reasonable professional assistance.5 See Mukhtaar v.
Commissioner of Correction, 158 Conn. App. 431, 449,
119 A.3d 607 (2015). Without permission from the court
to interview N, Mantell would have testified, as his
testimony before the habeas courts reveals, in a general-
ized way to the procedures he uses to make Jarzbek
evaluations. This testimony was unlikely to undermine
the reliability of Goldin’s Jarzbek assessment because,
as Mantell acknowledged in his testimony at the first
habeas proceeding, there is ‘‘no published protocol . . .
within the psychological field for’’ performing a Jarzbek
evaluation. Furthermore, expert testimony is not
required at a Jarzbek hearing. See State v. Spigarolo,
supra, 210 Conn. 372. Casale testified at the first habeas
proceeding that ‘‘in the real world the [trial] court is
going to go with the testimony of [Goldin who] say[s]
that this child cannot testify in an open courtroom over
and above a defense expert who may not have even seen
the child, but is going to talk, in generalized theory.’’
The petitioner has not overcome the presumption that
trial counsel’s decision not to present Mantell’s testi-
mony without the court first granting his Marquis
motion constituted sound trial strategy.
Accordingly, we agree with the second habeas court
that the petitioner has not shown that his trial counsel
rendered deficient performance either during the cross-
examination of Goldin or in declining to present the
testimony of Mantell at the Jarzbek hearing.
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 victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
2
The petitioner also argues that the court improperly determined that he
failed to prove that he suffered prejudice. Because we conclude that the
court properly determined that the petitioner did not prove deficient perfor-
mance, we need not address prejudice. See Small v. Commissioner of
Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied sub nom.
Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
3
Following a jury trial, the petitioner was convicted of two counts of
sexual assault in the first degree in violation of General Statutes § 53a-70
(a) (2), one count of risk of injury to a child in violation of General Statutes
(Rev. to 2003) § 53-21 (a) (2), and one count of sexual assault in the fourth
degree in violation of General Statutes (Rev. to 2003) § 53a-73a (a) (1) (A).
State v. Ruiz, 124 Conn. App. 118, 119–20, 3 A.3d 1021, cert. denied, 299
Conn. 908, 10 A.3d 525 (2010).
4
Ivers testified before the first habeas court that he asked Casale to be
cocounsel because of Casale’s criminal trial experience.
5
The petitioner also argues that viewing Ivers’ decision not to present
Mantell’s testimony as a reasonable strategic decision is inconsistent with
Casale’s testimony at the first habeas proceeding that he did not recall if
Ivers’ decision not to present Mantell’s testimony was strategic and that if
Ivers were to have presented Mantell’s testimony at the Jarzbek hearing
that ‘‘the defense wouldn’t lose anything. . . . I[t] wouldn’t hurt.’’ There is
no inconsistency in Casale’s inability to recall if Ivers’ decision was strategic
and Casale’s admission that Mantell’s testimony would not harm the defense
with Ivers’ strategic decision not to present Mantell’s testimony.