Opinion
CV144006397S
08-17-2017
Santos Cancel (Inmate #250492) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Santos Cancel, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation. He seeks an order of this court directing the sentencing court to vacate his judgments. The respondent denies the petitioner's claims. The court finds the issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY
On March 5, 2009, the petitioner was arrested in the matter of State v. Cancel, CR-09-0378780 and charged by the state, in a substitute information, 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 General Statutes § 53a-73a(a)(1)(A) and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and (2). The charges in this case involved the victim, J.E. On August 5, 2009, the petitioner was arrested in the matter of State v. Cancel, CR-09-0383040 and charged by the state, in a substitute information, with one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73(a)(1)(A) and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and (2). The charges in this case involved the victim, G.E. The petitioner was represented by Attorney Tina Sypek-D'Amato. On December 1, 2009, the prosecuting authority filed a motion for joinder of the two trials, which the court, O'Keefe, J., granted on September 15, 2011, after Attorney D'Amato withdrew her objection.
On September 29, 2011, following 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.E.'s case. The jury found the petitioner guilty of all charges in G.E.'s case. That same day, the petitioner entered guilty pleas to charges of being a persistent serious felony offender in violation of General Statutes § 53a-40(c). On March 12, 2012, the court, O'Keefe, J., sentenced the petitioner to fifteen-year sentences in each case to run consecutively for a total effective term of thirty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Cancel, 149 Conn.App. 86, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014). The petitioner was represented by Attorney William Westcott in his direct appeal.
The jury reasonably could have found the following facts with respect to the charges in the first case, which involved the victim, J.E.
J was eleven years of age in February 2009, and resided with her uncle. J's mother resided with the defendant and three of J's maternal siblings, all minors, in a nearby city. Sometime in February 2009, J went to her mother's residence for an overnight visit. J's mother, the defendant, 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 defendant sitting on the floor touching her " front private area." When the defendant realized that J was awake, he apologized to her. J's mother then called for the defendant, prompting him to leave the room. Later that night, the defendant returned to the bedroom. He woke J and instructed her to go to another bedroom in the residence. J proceeded to go into the other bedroom, alone, and went back to sleep. The defendant then entered the other bedroom. He shut the door, positioned himself on top of J and " went up and down." The defendant then cut a hole in J's underwear and initiated sexual contact with J's intimate areas. Following her encounter with the defendant, 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 defendant 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 defendant had tried to " abuse her" the night she stayed at her mother's home. J's uncle subsequently contacted the social worker at J's school. The social worker met with J, and J explained what occurred on the night she stayed at her mother's residence. After meeting with J, the social worker reported the incident to the Department of Children and Families (department). The department, in turn, contacted the police. Thereafter, J and her uncle went to the police station where J explained to the police how the defendant had made inappropriate contact with her on the night she stayed at her mother's residence. The police subsequently initiated an investigation into the incident and sought out J's mother and the defendant for questioning. When the police arrived at the mother's residence, the defendant ran out the back door. J's mother, however, agreed to accompany the police to the station for questioning. During questioning, J's mother indicated that during J's most recent visit, J had told her that she woke up with holes in her underwear. J's mother also indicated that one of her other daughters had reported waking up with holes in her underwear on several occasions.State v. Cancel, supra, 149 Conn.App. 88-89.
The jury reasonably could have found the following facts with respect to the charges in the second case, involving the victim, G.E.
G was ten years of age in February 2009, and one of J's siblings. G lived with her mother and the defendant on a permanent basis. After speaking to her mother in connection with J, the police questioned G. G told the police that on certain nights, the defendant would come into her room and tell her to change her sleeping position. In the mornings that followed the defendant's nighttime visits, G woke up to find holes in her underwear and pants, always in the vicinity of her intimate areas. These holes were never present when she went to sleep, but appeared after she woke up the next morning. She was uncertain of what caused the holes to appear, but believed that her cat caused the holes in her clothing because her cat previously had ripped holes in her sister's clothing. She explained that the holes in her clothing appeared only during the time the defendant 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 defendant's semen was present on the inside and outside of three pairs of G's underwear and one pair of her pants. The defendant could not be eliminated as the source of semen present on another pair of underwear.State v. Cancel, supra, 149 Conn.App. 90-91.
The petitioner initiated the present habeas petition on July 31, 2014. In his amended petition, filed on October 12, 2016, the petitioner claims that his trial counsel, Attorney D'Amato, was ineffective in failing to: (1) conduct an adequate investigation into the facts and circumstances of the case; (2) adequately research the legal issues in the case; (3) object to the joinder of the two cases for trial; (4) preserve the petitioner's right to appeal from the court's decision joining the two cases for trial; (5) adequately pursue the production and disclosure of confidential and privileged materials related to the complainant; (6) adequately educate herself about the issues unique to child sexual abuse cases; (7) consult with and present the testimony of a mental health professional with an expertise in investigating and assessing child sexual abuse allegations; (8) adequately present an alternative innocent explanation for the complainants' allegations of sexual abuse; (9) present evidence of a custody dispute that occurred when the victim, J., made her first allegations of sexual abuse; (10) adequately challenge the state's theory that the petitioner used the scissors entered into evidence to cut holes in the complainants' underwear to facilitate a sexual assault; (11) object to prosecuting authority's questioning of Detective Cathleen Knapp in which the prosecuting authority asked Detective Knapp for her opinion about the ultimate issue in the case; (12) move to strike Detective Knapp's testimony that, in her opinion, G.E. was a victim; (13) move for a mistrial after Detective Knapp testified that, in her opinion, G.E. was a victim; (14) adequately cross examine or impeach J's testimony; (15) adequately cross examine or impeach G.E.'s testimony; (16) adequately cross examine or impeach Jose Espinal's testimony; (17) present evidence that the state's investigation into the allegations were incomplete and biased; (18) present favorable testimony through complainants' biological mother; and (19) be present during petitioner's interview with the probation officer who prepared a presentence investigation report prior to sentencing.
The petitioner's petition also alleged ineffective assistance claims against Attorney D'Amato for failing to consult with and present the testimony of a DNA expert and failing to consult with and present the testimony of a veterinarian with expertise in feline behavior. Both of these claims were withdrawn by the petitioner prior to the commencement of evidence on March 6, 2017.
A trial was held on March 6, 2017, and March 7, 2017. The petitioner called as witnesses Attorney D'Amato, Sheila Negron, a Department of Children and Families (DCF) investigative social worker, Detective Knapp and Dr. Nancy Eiswirth, a forensic psychologist. Both parties submitted exhibits to the court.
II
DISCUSSION
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . 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)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. at 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. at 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689.
Under the second prong of the test, the prejudice prong, " a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Small v. Commissioner of Correction, supra, 286 Conn. 713.
" To establish prejudice, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . A claimant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Hilton v. Commissioner of Correction, 161 Conn.App. 58, 77, 127 A.3d 1011 (2015).
" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989), quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674; King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002) (" [b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong"), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).
A
Adequate Investigation, Research and Education
The petitioner first claims that Attorney D'Amato was ineffective for failing to conduct an adequate investigation into the facts and circumstances of the case, failing to adequately research the legal issues in the case and failing to adequately educate herself about the issues unique to child sexual assault cases. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to these claims.
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." (Internal quotation marks omitted.) Morquecho v. Commissioner of Correction, 164 Conn.App. 676, 684, 138 A.3d 424 (2016). " The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
At the habeas trial, Attorney D'Amato testified that she reviewed the evidence in the petitioner's case, which included statements by both complainants, DNA analysis that revealed the presence of the petitioner's semen on the inside and outside of three pairs of G.E.'s underwear and one pair of G.E.'s pants, six pairs of G.E.'s underwear and two pairs of her pants with holes that had been cut by a sharp object between the rear end and genital area and a videotape of J.E.'s forensic interview. Attorney D'Amato also testified that her defense theory at trial was that the petitioner was not guilty of attempted sexual assault in the first degree because there was no evidence of attempted penetration, and that the tears in the complainant's underwear were caused by the cat, not the petitioner. Attorney D'Amato noted that the petitioner was acquitted of the attempted sexual assault in the first degree charge.
Attorney D'Amato further testified at the habeas trial that she was familiar with the sexual assault statutes, the potential defenses in sexual assault cases and the penalties associated with each of the petitioner's charges. She also testified that she attended trainings specific to child sexual abuse cases.
In light of the evidence presented at the habeas trial and the strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable, the court finds that Attorney D'Amato's investigation, research and education as it relates to the petitioner's case was not constitutionally deficient. Furthermore, the petitioner has failed to establish what benefit would have been realized by additional investigation, research or education. As such, the petitioner has failed to establish deficient performance or prejudice. Accordingly, these claims must fail.
B
Joinder
The petitioner claims that Attorney D'Amato was ineffective for failing to object to the joinder of the two cases for trial and failing to properly preserve the issue for appellate review. The petitioner failed to prove prejudice as to these claims.
At the time of the petitioner's criminal convictions, " Connecticut courts recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . [would] not second guess the considered judgment of the court as to the joinder or severance of two or more charges . . . This presumption in favor of joinder subsequently was rejected by our Supreme Court in State v. Payne, 303 Conn. 538, 547, 34 A.3d 370 (2012) ([w]e therefore will no longer adhere to the blanket assumption in favor of joinder) . . . [A]lthough 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." (Citation omitted; internal quotation marks omitted.) Rogers v. Commissioner of Correction, 143 Conn.App. 206, 211-12, 70 A.3d 1068 (2013).
" [W]hen charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be substantially prejudiced pursuant to the Boscarino factors." State v. Payne, supra, 303 Conn. 549-50. " In [ State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987)], our Supreme Court recognized three factors that must be considered by a trial court in determining whether joinder is appropriate. Those factors are (1) whether the charges involve discrete, easily distinguishable factual scenarios, (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part and (3) the duration and complexity of the trial." State v. Boscarino, 86 Conn.App. 447, 460, 861 A.2d 579 (2004).
" In deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb . . . The defendant bears a heavy burden of showing that [joinder] resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions." (Internal quotation marks omitted.) Vallejo v. Commissioner of Correction, 136 Conn.App. 818, 824, 46 A.3d 991, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).
At the habeas trial, Attorney D'Amato testified that she was familiar with the case law relating to joinder at the time of the petitioner's trial, and the factors the court uses to determine whether cases should be joined. She further testified that she was aware that in 2011, when the petitioner's trial occurred, there was a presumption in favor of joinder. Attorney D'Amato testified that she initially objected to the joinder, but she believed there was no good faith basis to go forward after researching the issue. Attorney D'Amato anticipated that the cases would be joined because there were two alleged child victims of sexual assaults, that the assaults were conducted in a similar manner, that both assaults were alleged to have been committed by the petitioner, and that the evidence as to each victim would be cross-admissible in the two trials.
The court finds that the petitioner failed to prove prejudice as to these claims. Even if Attorney D'Amato's failure to object to the joinder of the two criminal cases or failure to preserve the issue for appeal constituted deficient performance, an analysis of the Boscarino factors demonstrates that there is not a reasonable probability that the outcome of the proceedings would have been different. The crimes alleged in the two informations have distinguishable fact patterns involving two different victims. Both cases allege similar sexual misconduct towards children. Neither incident was so violent or brutal as to impair the jury's ability to consider the charges against the petitioner in a fair manner. The three days of evidence at the joint trial was neither lengthy nor complex. Given these facts, the court concludes that there is not a reasonable probability that, but for Attorney D'Amato's failure to object, the two criminal cases would not have been joined. Because the petitioner failed to prove prejudice as to these claims, the court need not determine whether Attorney D'Amato's performance was constitutionally deficient. See Aillon v. Meachum, supra, 211 Conn. 362. As a result, these claims must fail.
C
Expert Witness
The petitioner also claims that Attorney D'Amato was ineffective for failing to consult with an expert and present a suggestibility defense or an alternative innocent explanation as supported by expert testimony. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to these claims.
" [O]ur Supreme Court has 'never adopted a bright line rule that an expert witness for the defense is necessary in every sexual assault case.' Michael T. v. Commissioner of Correction, 307 Conn. 84, 100-01, 52 A.3d 655 (2012); see also Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 76 n.7, 943 A.2d 1143 ('[t]he United States Court of Appeals for the Second Circuit has stated: [T]here is no per se rule that requires trial attorneys to seek out any expert' [emphasis in original; internal quotation marks omitted]), cert denied, 287 Conn. 920, 951 A.2d 569 (2008). '[U]nder certain circumstances, [however] the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.' Peruccio v. Commissioner of Correction, [ supra, 107 Conn.App. 76]." Roger B. v. Commissioner of Correction, 157 Conn.App. 265, 116 A.3d 343 (2015).
However, the decision to call any witness, including an expert witness, " does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 681, 51 A.3d 948 (2012). " The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 134 Conn.App. 44, 58, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).
Attorney D'Amato testified at the habeas trial that she did not consider hiring a forensic mental health professional because it did not seem necessary given the overwhelming evidence against the petitioner, including G.E.'s underwear and pants, which had scissor cuts and the petitioner's DNA on them, the petitioner's prior sex assault conviction and the complainants' statements to the police. Attorney D'Amato further testified that she was familiar with the protocols used by forensic interviewers after working extensively with a mental health professional relating to child sex abuse interviews in a prior habeas case, and attending at least one training on forensic interviews as a special public defender. She also testified that she had an understanding of the role of suggestion and suggestibility in sexual abuse cases involving a child with a low I.Q., and that she knew that J.E. had an I.Q. of 50. Attorney D'Amato indicated that she viewed the video several times, and she did not believe that the interview violated any protocols in forensic interviewing or seemed suggestive. She further testified that she believed that the forensic interview aided her theory of defense because the complainant indicated in the videotape that the cat ripped her underwear. Attorney D'Amato also testified that that she did not present the alternative innocent explanation that the petitioner's DNA was found on G.E.'s garments because he masturbated and wiped his semen on them because the petitioner was the only one who could testify to that fact and he was not going to testify in his case.
The petitioner also presented the expert testimony of Dr. Nancy Eiswirth, a licensed clinical psychologist. Dr. Eiswirth indicated that she reviewed the entirety of the videotape, the police reports, the witness statements and the DNA analysis report. She testified generally as to, among other things, the protocols for conducting forensic interviews of children, the duties of a forensic interviewer and the purpose of forensic interviews. Dr. Eiswirth further testified that generally children with a low I.Q. have higher levels of suggestibility, but she did not make a determination about J.E.'s level of suggestibility. Dr. Eiswirth also testified that one of the purposes of a forensic interview is to identify false allegations and rule out alternative explanations, but that when a child's allegations are corroborated by other evidence, the concern about false allegations is decreased because there is evidence separate and apart from the complainant's statement. When questioned as to her opinion of the overall quality of the forensic interview, Dr. Eiswirth testified that she believed the interviewer did as good a job as she could do with the complainant overall.
The petitioner failed to prove that Attorney D'Amato's failure to retain a mental health professional constituted deficient performance. " '[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.' . . . Watson v. Commissioner of Correction, 111 Conn.App. 160, 170-71, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008); see also Adorno v. Commissioner of Correction, 66 Conn.App. 179, 183, 783 A.2d 1202 ('[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy' [internal quotation marks omitted]), cert. denied, 258 Conn. 943, 786 A.2d 428 (2001)." Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 284-85. Attorney D'Amato's testimony indicated that she understood the forensic interview protocols and the role of suggestibility, and that she did not witness any improprieties in the interview after viewing the videotape several times. Further, Attorney D'Amato did not call an expert witness to analyze the videotape because the taped interview aided her defense that the cat ripped the complainants' underwear. Additionally, she did not present the alternative innocent explanation regarding the petitioner's DNA because she could not do so without the petitioner's testimony. As a result, the court finds that Attorney D'Amato's conduct falls within the wide range of reasonable professional assistance and is not constitutionally deficient.
Moreover, the petitioner also failed to establish that he was prejudiced by Attorney D'Amato's failure to retain a mental health professional. To establish prejudice, the petitioner would have to prove that the interviews were so improperly conducted that had trial counsel consulted an expert and presented expert testimony as to the alleged improprieties, the jury would have had a reasonable doubt as to the petitioner's guilt. While Dr. Eiswirth testified generally as to concerns regarding the suggestibility of a child with a low I.Q., she made no determination as to J.E.'s level of suggestibility or that the forensic interview was improperly conducted. Rather, she testified that she believed the interviewer did as good a job as she could do. Moreover, there is no evidence to support the petitioner's claim that expert testimony could have supported the petitioner's alternate innocent explanation defense. Therefore, the petitioner failed to prove that there is a reasonable probability that the outcome of the proceedings would have been different had Attorney D'Amato retained a mental health professional. As a result, these claims must also fail.
D
Detective Knapp
The petitioner further claims that Attorney D'Amato was ineffective for permitting the state to present testimony from Detective Knapp that, in her opinion, G.E. was a victim of sexual assault, without objecting to the question, moving to strike the testimony or moving for a mistrial. The petitioner failed to establish prejudice as to these claims.
Section 7-3 of the Connecticut Code of Evidence provides: " Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue." Our Supreme Court stated " that the phrase 'ultimate issue' is 'not amenable to easy definition.' . . . As a rule, however, [t]estimony is objectionable if it embraces an opinion on the ultimate issue to be decided by the trier of fact . . . It is improper for a witness to offer testimony that essentially constitutes a legal opinion about the guilt of the defendant." (Citation omitted.) State v. Finan, 275 Conn. 60, 66, 881 A.2d 187 (2005). " [A]n ultimate issue [is] one that cannot reasonably be separated from the essence of the matter to be decided [by the trier of fact]." (Internal quotation marks omitted.) Id.
At the petitioner's criminal trial, Detective Knapp testified that it was her opinion that G.E. was a victim of sexual assault. She did not testify as to her opinion about the petitioner's guilt. Attorney D'Amato testified at the habeas trial that she now believes that Knapp's statement was objectionable, but that she did not recall that testimony being elicited during the petitioner's trial. The court need not determine whether Detective Knapp's testimony was tantamount to a legal opinion about the petitioner's criminal culpability or whether Attorney D'Amato's failure to object to the testimony constituted deficient performance because the petitioner was not prejudiced thereby. See Aillon v. Meachum, supra, 211 Conn. 362.
" The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding . . . Rather, [the 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 . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt . . . Meeting this admittedly high standard is indeed a herculean task . . . A court ruling on prejudice must consider the totality of the evidence before the judge or the jury." (Citation omitted; internal quotation marks omitted.) Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 281-82.
There was a substantial amount of evidence against the petitioner in the underlying criminal case, including statements by both complainants, DNA analysis that revealed the presence of the petitioner's semen on the inside and outside of G.E.'s underwear and clothing, numerous pairs of G.E.'s underwear and pants with holes that had been cut by a sharp object between the rear end and genital area and a videotape of J.E.'s forensic interview. In light of this evidence, the court finds that there is not a reasonable probability that, had Attorney D'Amato prevented the state from presenting opinion testimony by Detective Knapp that G.E. was a victim of sexual assault, the result of the proceeding would have been different. Therefore, these claims must also fail.
E
Presentence Investigation Interview
The petitioner also claims that Attorney D'Amato was ineffective for failing to attend the petitioner's presentence investigation interview (PSI). The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
Practice Book § 43-5 provides: " Defense counsel, on a prompt request, shall be notified of the time when the defendant shall be interviewed by probation officers regarding a presentence or alternate incarceration assessment report or both for the judicial authority and may be present: (2) To assist in answering inquiries of the probation officer; (2) To assist in resolving factual issues and questions; (3) To protect the defendant against incrimination regarding other pending indictments or investigations; and (4) To protect the defendant's rights with respect to an appeal of conviction." (Emphasis added.)
Attorney D'Amato testified that she was not present at the petitioner's PSI because she got lost on her way to the prison, and despite a phone call to the prison requesting the probation officer to wait, the interview was completed when she arrived. Although she was not present at the interview, Attorney D'Amato discussed the interview with the petitioner and subsequently reviewed the PSI. At the petitioner's sentencing hearing, Attorney D'Amato moved to strike any denials the petitioner made from the report and presented mitigating factors to the court as part of her argument for a lesser sentence, including the physical and sexual abuse the petitioner had suffered and his cognitive difficulties. As a result, the court finds that Attorney D'Amato's absence at the petitioner's PSI did not constitute deficient performance.
Moreover, the petitioner failed to prove prejudice. The sentencing court indicated that the case against the petitioner was extremely strong and the victims' testimony was very compelling. The court also acknowledged the mitigating factors, including the petitioner's prior abuse and cognitive difficulties, but found that they were irrelevant, noting that " [s]ometimes the act that a judge deals with when he's sentencing is so horrible that it kind of overshadows all of the other circumstances and considerations that the defendant brings to the table." Therefore, the petitioner failed to establish prejudice by proving that he would have received a lesser sentence but for counsel's alleged deficiencies. As a result, this claim must fail.
F
Cross Examination
The petitioner also claims that Attorney D'Amato was ineffective in failing to adequately cross examine, impeach or otherwise challenge the testimony of J.E., G.E. or Jose Espinal, the complainants' uncle. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to these claims.
" [C]ross-examination is a sharp two-edged sword and more criminal cases are won by not cross-examining adverse witnesses, or by a very selective and limited cross-examination of such witnesses, than are ever won by demolishing a witness on cross-examination . . . The decision whether to cross-examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).
In other words, " [a]n attorney's line of questioning of a witness is a tactical decision. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.' . . . Antonio A. v. Commissioner of Correction, [148 Conn.App. 825, 832, 87 A.3d 600]; see also Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 769-70, 953 A.2d 685 (after reviewing record from both criminal and habeas proceedings, Appellate Court agreed that examination of witnesses was exercise of sound trial strategy that would not be second-guessed), cert. denied, 289 Conn. 950, 961 A.2d 417 (2008)." Hilton v. Commissioner of Correction, supra, 161 Conn. 71. " 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.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
In the instant matter, the petitioner has failed to demonstrate in what manner underlying counsel's cross examination of these witnesses was constitutionally deficient. Additionally, the petitioner has failed to establish the benefit of inquiry into additional areas. Having failed to establish both deficient performance and prejudice, these claims must also fail.
H
Privileged Materials
The petitioner claims that Attorney D'Amato failed to adequately pursue the production and disclosure of confidential and privileged materials related to the complainant. The petitioner failed to prove this claim.
At the habeas trial, Attorney D'Amato testified that she understood the law governing the process by which defense attorneys can request access to confidential records, and the minimum threshold requirements necessary for an attorney to gain access to them. Attorney D'Amato further testified that she determined, after reviewing the evidence in the petitioner's case, that she did not have a good faith basis for requesting an in camera review of J.E.'s records. Attorney D'Amato indicated that she did not believe that the complainant's low I.Q. or attendance in special education classes constituted a good faith basis because such factors are not relevant to the allegations she made. This court denied habeas counsel's request to perform an in camera review of J.E.'s school records on the grounds that the offer of proof was overly broad and did not set forth the issue in the case as supported by any foundation of factual information or expert opinion. Therefore, the petitioner did not demonstrate that Attorney D'Amato's decision to refrain from requesting an in camera review after reviewing the evidence was constitutionally deficient, or how he was prejudiced thereby. As a result, this claim must fail.
I
Custody Dispute
The petitioner also claims that Attorney D'Amato was ineffective in failing to present evidence of a custody dispute between her biological mother, Melida, and her uncle, Jose. The petitioner presented certified copies of documents from the Danbury Probate Court to this court for an in camera review to determine whether the probate proceedings would impact the credibility of the state's witnesses, including J.E., her uncle, Jose, and her uncle's wife, Maria, as it relates to the allegations. After review, this court found no support for the petitioner's theory relating to a custody dispute between the mother and Jose and Maria as to any of the children. Therefore, no records were disclosed. As a result, the petitioner cannot prove that Attorney D'Amato's failure to present this evidence was constitutionally deficient or that there is a reasonable probability that the outcome of the proceedings would have been different had she presented it. As a result, this claim must fail.
J
Remaining Claims
The petitioner's remaining claims allege that Attorney D'Amato was ineffective in failing to adequately challenge the state's theory that the petitioner used the scissors entered into evidence to cut holes on the complainants' underwear, failing to present evidence that the state's investigation into the allegations were incomplete and biased, and failing to present favorable testimony through the complainants' biological mother.
There was no evidence, argument or analysis directed to these claims at trial, nor were the claims addressed in the petitioner's post-trial brief. As such the court deems the claims abandoned. " The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008). As a result, these claims must fail.
III
CONCLUSION
Accordingly, the petitioner's habeas petition is denied.