David N.J. v. Commissioner of Correction , 170 Conn. App. 862 ( 2017 )

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DAVID N.J.* v. COMMISSIONER
OF CORRECTION
(AC 38488)
Beach, Mullins and Sullivan, Js.**
Argued October 11, 2016—officially released February 28, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Vishal K. Garg, for the appellant (petitioner).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David M. Carlucci, assistant state’s attorney,
for the appellee (respondent).
Opinion
BEACH, J. The petitioner, David N.J., appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. He claims that the court
improperly rejected his claim that his trial counsel ren-
dered ineffective assistance by (1) failing adequately
to cross-examine the victim and others regarding the
victim’s version of events, and (2) failing adequately to
cross-examine VJ, the victim’s brother. We affirm the
judgment of the habeas court.
Our Supreme Court, which affirmed the petitioner’s
conviction on direct appeal in State v. David N.J., 301
Conn. 122, 19 A.3d 646 (2011),1 set forth the following
facts which the jury reasonably could have found: ‘‘The
victim, who is the stepgranddaughter of the [petitioner],
was born in August, 1997. From August, 2003, through
December, 2005, the victim resided in an apartment in
Hartford with her father V, her older brother VJ, and
three younger siblings. During that time period, the
[petitioner] was a frequent visitor to the victim’s home,
and he moved into the apartment during the middle of
2005 after his wife entered a nursing home.
‘‘Thereafter, the [petitioner] had frequent opportuni-
ties to be alone with the victim because V often asked
the [petitioner], who temporarily had been out of work
due to a fractured arm, to watch the children while V
was at work or school. If V was away from home or
was at home sleeping, the [petitioner] would often take
the victim into his bedroom and engage her in acts of
vaginal intercourse, both penile and digital, and fellatio;
he gave the victim money after she engaged in these
acts. At some point during that two year period, the
victim confided in VJ, who was also her best friend, that
the [petitioner] had been touching her inappropriately.
Thereafter, whenever the [petitioner] took the victim
into the bedroom, if VJ was around, he would go to the
door and either listen briefly or attempt to peek at what
was happening through a small gap at the bottom of
the door to the hallway. At one point, VJ was able to
see the victim lying naked atop a set of pillows on the
floor in the bedroom; the victim subsequently caught
VJ at the door when she saw his socks outside the room
through the gap and asked him to stop eavesdropping.
Neither the victim nor VJ told V of the ongoing abuse
because they were afraid that no one would believe
them. The victim also feared that V would injure the
[petitioner] and then ultimately be sent to prison.
‘‘On Christmas Eve in 2005, the [petitioner] made the
victim perform fellatio on him before she and her family
left to visit her aunt’s house. At that time, the family
was preparing to move because their apartment was
not in good condition, and the [petitioner] was also
about to find his own place to live. When they returned
home that night, the [petitioner] was not present, and
VJ convinced the victim to tell an adult about the abuse.
The victim first told R, an older cousin, who instructed
her to tell V of the abuse.
‘‘The victim told V about the abuse later that day,
and V brought the victim to the Connecticut Children’s
Medical Center. After medical personnel there alerted
the [Department of Children and Families (depart-
ment)] and the Hartford police about the victim’s allega-
tions, the victim was referred to the Aetna Foundation
Children’s Center at Saint Francis Hospital and Medical
Center, where she underwent a diagnostic interview by
Lisa Murphy-Cipolla, a clinical social worker, and an
examination by Frederick Berrien, a physician. The
investigation continued when Phillip J. Clark, a Hartford
police detective, subsequently reviewed a video
recording of Murphy-Cipolla’s interview of the victim,
and then conducted an interview of the [petitioner].
‘‘Subsequently, the state charged the [petitioner] with
five counts of sexual assault in the first degree in viola-
tion of § 53a-70 (a) (2), and one count of risk of injury
to a child in violation of § 53-21. The [petitioner’s] theory
of the case during the subsequent jury trial was that
the victim was a habitual liar who, acting in concert with
VJ, had fabricated the charges against the [petitioner] to
force him to move out because she: (1) was angry that
he had taken her bedroom after he moved in; and (2)
resented his attempts to discipline her. The jury, how-
ever, returned a verdict finding the [petitioner] guilty
on counts one, two and five of the information alleging,
respectively, sexual assault in the first degree by digital-
vaginal penetration, penile-vaginal penetration, and fel-
latio, and count six alleging risk of injury to a child;
the jury found him not guilty on counts three and four
of the information alleging sexual assault in the first
degree by penile-anal penetration and cunnilingus. After
denying the [petitioner’s] motions for a new trial and
for a postverdict judgment of acquittal, the trial court
rendered a judgment of conviction in accordance with
the jury’s verdict and sentenced the [petitioner] to a
total effective sentence of twenty-nine years imprison-
ment with ten years of special parole.’’ (Footnotes omit-
ted.) Id., 126–29.
In July, 2012, the petitioner filed a petition for a writ
of habeas corpus. In his second amended petition, the
petitioner claimed that his trial counsel were ineffective
in numerous ways. At the underlying criminal trial,
attorneys Robert Meredith and John Delbarba repre-
sented the petitioner as cocounsel. In a posttrial brief,
the petitioner argued only that his counsel at the under-
lying criminal trial rendered ineffective assistance in
failing adequately to impeach the testimony of the vic-
tim and VJ. The court concluded that counsel did not
render ineffective assistance. The court granted the
petitioner’s petition for certification to appeal. This
appeal followed.
‘‘Our standard of review in a habeas corpus proceed-
ing challenging the effective assistance of trial counsel
is well settled. Although a habeas court’s findings of
fact are reviewed under the clearly erroneous standard
of review . . . [w]hether the representation a defen-
dant received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, that
question requires plenary review by this court unfet-
tered by the clearly erroneous standard. . . .
‘‘The petitioner’s right to the effective assistance of
counsel is assured by the sixth and fourteenth amend-
ments to the federal constitution, and by article first,
§ 8, of the constitution of Connecticut. In Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the United States Supreme Court
established that for a petitioner to prevail on a claim
of ineffective assistance of counsel, he must show that
counsel’s assistance was so defective as to require
reversal of [the] conviction. . . . That requires the peti-
tioner to show (1) that counsel’s performance was defi-
cient and (2) that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable. . . .
‘‘To prove that his counsel’s performance was defi-
cient, the petitioner must demonstrate that trial coun-
sel’s representation fell below an objective standard of
reasonableness. . . . Competent representation is not
to be equated with perfection. The constitution guaran-
tees only a fair trial and a competent attorney; it does
not ensure that every conceivable constitutional claim
will be recognized and raised. . . . 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 inher-
ent 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. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive [him] 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 proceed-
ings. . . . Rather, [t]he [petitioner] must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome. . . . When a [petitioner] challenges a convic-
tion, the question is whether there is a reasonable prob-
ability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.’’ (Citations
omitted; internal quotation marks omitted.) Toccaline
v. Commissioner of Correction, 80 Conn. App. 792,
797–99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845
A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543
U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).
I
The petitioner argues that the performance of trial
counsel was deficient because of the failure to impeach
the victim regarding inconsistencies among statements
made by the victim in her diagnostic interview, inconsis-
tencies between the victim’s testimony at trial and state-
ments made by her in her diagnostic interview, and
the victim’s purportedly false statement made in her
diagnostic interview to the effect that the petitioner
had also abused the victim’s cousin, T. The petitioner
contends that the credibility of the victim was of utmost
importance in the criminal trial and that trial counsel’s
failure to impeach the victim’s credibility in these ways
constituted ineffective assistance. We do not agree.
A
We first address the claim that the habeas court erred
in concluding that his trial counsel were not deficient
for failing to cross-examine the victim regarding incon-
sistencies occurring in her diagnostic interview, in
which she gave different accounts regarding the timing
of her initial disclosure of the abuse to VJ, and what
sexual acts occurred during the most recent incident
of abuse. The petitioner also claims that counsel should
have brought out in cross-examination inconsistencies
between the victim’s trial testimony and statements she
made in the diagnostic interview. We do not agree.
The habeas court concluded that Meredith thor-
oughly cross-examined the victim and elicited testi-
mony revealing inconsistencies as to the sequence and
detail of her disclosures and demonstrating that the
victim harbored some degree of animus against the
petitioner. The court credited counsel’s testimony that,
as a matter of trial strategy, witnesses were not cross-
examined on all potential inconsistencies but rather on
‘‘the ones that are the most substantial . . . .’’
Meredith testified at the habeas trial about his trial
strategy regarding the cross-examination of the victim.
He testified that he reviewed the video of the diagnostic
interview and that he had a transcript made in prepara-
tion for his cross-examination of the victim. He
explained that the theory of the defense was that a
physical examination revealed no physical trauma to
the victim, that the victim fabricated the abuse because
she did not want the petitioner to live in the house,
and that, because of the physical characteristics of the
house, VJ could not physically have been able to look
under the bedroom door and see anything happening.
Meredith testified that ‘‘[o]ftentimes . . . it’s much
harder because it is a child . . . . [I]f this was an . . .
adult sex case, your cross-examination can be much
harder and much more prepared. In these types of cases
it’s almost a fluid cross-examination because you have
to interact with a child at an age appropriate language
and also ask a question in such a way as to not appear
in front of a jury that you’re beating the child up.’’ He
testified that he chose to cross-examine the victim on
significant issues that fit within the theory of the
defense. Meredith stated that he did not question the
victim regarding certain alleged inconsistencies
because, in his opinion, either the inconsistencies did
not exist or he chose not to pursue them as a matter
of strategy.
We agree with the habeas court that Meredith’s cross-
examination of the victim was thorough and did not
fall below an objective standard of reasonableness. Mer-
edith elicited testimony from the victim regarding the
position of the room in question in relation to other
rooms in the house, including VJ’s. She said that VJ
looked under the small space under the door to see
what was going on, and that she knew it was VJ because
she saw his socks. She conceded that she got in trouble
with her father and the petitioner for lying. She agreed
that she was upset when the petitioner moved in and
took her room, and she admitted to telling others that
she would get her room back. She said that she would
get in trouble when the petitioner watched her and
that she was angry at the petitioner for punishing her
because he was not her ‘‘real’’ grandfather. She agreed
that she was angry at the petitioner for making her do
her chores over again if she did not do them right the
first time. She said she had access to adult channels
on the television. She acknowledged that she heard
children at school talking about sex. Finally, although
her trial testimony was that the petitioner would give
her a few dollars after abusing her, she had said during
her diagnostic interview that he would give her five,
ten, twenty, and one hundred dollar bills.
‘‘An attorney’s line of questioning on examination 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.) Velasco v.
Commissioner of Correction, 119 Conn. App. 164, 172,
987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289
(2010). A review of the record in this case persuades us
to agree with the habeas court.
B
The petitioner argues that the court erred in conclud-
ing that counsel did not render ineffective assistance
by failing to cross-examine Murphy-Cipolla regarding
inconsistencies within the victim’s diagnostic interview
and inconsistencies between her trial testimony and
statements that she made in the diagnostic interview.
We disagree.
At the habeas trial, Meredith testified that he thought
that Murphy-Cipolla’s testimony was ‘‘clean’’ and that
after Murphy-Cipolla had testified, he and Delbarba
decided not to cross-examine her because ‘‘all she did
was regurgitate the story of the child, and had we
opened that up to cross, there would have been a redi-
rect. So I think we made a choice, a strategic decision
not to cross-examine her because she did not . . . hurt
us at all because all she did was regurgitate the child’s
story.’’ He testified that ‘‘[y]ou don’t cross-examine on
every possible inconsistency you might find. You try to
pick the ones that are the most substantial and the ones
that fit best within your theory of defense.’’ He stated
that he did not want ‘‘to open the door up so the state
could have another shot at her or develop additional
information.’’ The diagnostic interview was video
recorded, and Meredith explained that he did not want
to introduce the audio-visual copy of the diagnostic
interview into evidence because ‘‘I don’t want the inter-
view to come in unless there is suggestibility . . . .
The rationale for that is . . . not only is it oral in the
child’s own words, but also visual, and in this particular
case it was a very young child and I didn’t want a
diagnostic interview in the jury room where they could
watch it over and over again.’’
The court found that counsel had a valid strategic
reason for not offering any portion of the diagnostic
interview into evidence, and concluded, after reviewing
the transcript of the diagnostic interview, that an ‘‘an
audio and visual presentation of the [diagnostic inter-
view] would have been devastating to the defense.’’ The
court also concluded that the petitioner had failed to
demonstrate prejudice arising from counsel’s decision
not to cross-examine Murphy-Cipolla concerning incon-
sistencies in the victim’s disclosures in the diagnostic
interview. The court stated that, in light of counsel’s
opinion that the testimony was ‘‘clean,’’ it was not
unreasonable for counsel to conclude that cross-exam-
ining Murphy-Cipolla ‘‘would have led to damaging por-
tions of the interview being presented to the jury. As
counsel testified at trial, the defense did not wish to
open the door for the state to develop additional testi-
mony against the petitioner on redirect examination.’’
The petitioner argues that defense counsel should
have presented the aspects of the diagnostic interview
that were helpful to the defense because the state
already had presented parts of the transcript of the
diagnostic interview that were helpful to its case. The
habeas court determined that the performance prong
was not satisfied because defense counsel’s decision
not to introduce any of the diagnostic interview was a
sound strategic decision. ‘‘[C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment. . . . [B]ecause of the difficul-
ties 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 chal-
lenged action might be considered sound trial strategy.’’
(Citations omitted; internal quotation marks omitted.)
Roger B. v. Commissioner of Correction, 157 Conn.
App. 265, 284–85, 116 A.3d 343 (2015) (petitioner did not
overcome presumption that decision not to introduce
videotapes of interview in child sexual assault case
was strategic); see also Watson v. Commissioner of
Correction, 111 Conn. App. 160, 170–72, 958 A.2d 782
(counsel’s decision not to introduce report because it
would invite difficult questions was strategic decision),
cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).
We conclude that the habeas court did not err in
finding neither the performance prong nor the prejudice
prong proved with regard to the claim that the cross-
examination of Murphy-Cipolla was constitutionally
deficient. As to performance, attacking minor inconsis-
tencies may well have served only to reinforce the
impact of the overall events related by the victim to
Murphy-Cipolla, and risking an audio-visual version of
the victim’s presentation may have been foolhardy.
Counsel ought not be faulted for reasonable choices.
The habeas court also did not err in determining that
the petitioner failed to demonstrate prejudice. Further
cross-examination would not likely have affected the
outcome of the trial.
C
The habeas court also properly concluded that trial
counsel’s decision not to call T to testify was a matter
of sound trial strategy. The victim’s diagnostic inter-
view, in written form, was admitted as a full exhibit at
the habeas trial. In that interview, the victim stated that
T told her that the petitioner had sexually abused T in
a specific manner. The habeas court concluded that
trial counsel credibly testified that, after assessing the
strength of the state’s case, they made a strategic deci-
sion not to call T as a defense witness because there
was a real risk that T might testify in a manner damaging
to the defense. The court further concluded that the
petitioner had failed to establish that the victim’s state-
ments about T’s alleged abuse were demonstrably false.
The petitioner argues that trial counsel did not have
a reasonable strategic basis for declining to present
evidence at the underlying criminal trial that the victim
had falsely stated that the petitioner abused T. The
victim stated during her diagnostic interview that T had
told her that the petitioner made her perform fellatio
on him. The petitioner argues that the court erred in
finding that he had failed to show that the victim’s
suggestion that the petitioner had abused T was false.
He argues the allegation must have been false because
‘‘T repeatedly denied the abuse,’’2 there was no physical
indication that T had been abused, and the department
did not have any reports substantiating sexual abuse
involving T. He further argues that T’s testimony was
not the only avenue through which this evidence could
have been presented at the criminal trial. Although the
state introduced into evidence at the criminal trial only
portions of the diagnostic interview, trial counsel could
have presented the victim’s statements regarding the
petitioner’s abuse of T through the testimony of Mur-
phy-Cipolla, who conducted the diagnostic interview.
The rationale underlying the petitioner’s argument is
that, at least for the purpose of evaluating the victim’s
credibility, the jury should have been aware of the vic-
tim’s having wrongfully accused the petitioner of abus-
ing another minor.
‘‘[O]ur review of an attorney’s performance is espe-
cially deferential when his or her decisions are the result
of relevant strategic analysis. . . . Thus, [a]s a general
rule, a habeas petitioner will be able to demonstrate that
trial counsel’s decisions were objectively unreasonable
only if there [was] no . . . tactical justification for the
course taken. . . . [T]he decision not to call a witness
must be grounded in some strategy that advances the
client’s interests . . . .
‘‘[T]he presentation of testimonial evidence is a mat-
ter of trial strategy. . . . Defense counsel will be
deemed ineffective only when it is shown that a defen-
dant has informed his attorney of the existence of the
witness and that the attorney . . . without adequate
explanation . . . failed to call the witness at trial. . . .
Furthermore, [t]he failure of defense counsel to call a
potential defense witness does not constitute ineffec-
tive assistance unless there is some showing that the
testimony would have been helpful in establishing the
asserted defense. . . .
‘‘[O]ur habeas corpus jurisprudence reveals several
scenarios in which courts will not second-guess defense
counsel’s decision not to investigate or call certain wit-
nesses or to investigate potential defenses, such as
when . . . counsel learns of the substance of the wit-
ness’ testimony and determines that calling that witness
is unnecessary or potentially harmful to the case . . . .
Thus, an attorney’s choice to pursue a defense that
focuses on casting doubt on the state’s case rather than
on calling his or her own witnesses can be a reasonable
choice.’’ (Citations omitted; internal quotation marks
omitted.) Spearman v. Commissioner of Correction,
164 Conn. App. 530, 540–41, 138 A.3d 378, cert. denied,
321 Conn. 923, 138 A.3d 284 (2016).
Meredith testified at the habeas trial as to the strategy
underlying his decision not to call T as a witness. He
testified that in the course of investigating whether the
victim’s allegation regarding the petitioner’s abuse of
T was true, he discovered that T’s mother would not
let police talk to T. Meredith testified, ‘‘[S]o that meant
that [the petitioner] wouldn’t be prosecuted for that.’’
Trial counsel attempted to make contact with T through
the use of an interstate subpoena, as T and her mother
had moved out of state, but he was not able to contact
her until after the victim had testified in the underlying
criminal trial. Meredith testified that, because he had
not been able to talk to T, she was ‘‘a wildcard . . .
she could have told us something that we didn’t want
to hear because we never got a chance to talk to her
personally and then she would have been in the court-
house and the state’s attorney would have had access
to her. . . . [W]e had some concerns that [T] might
say, it didn’t happen to me but I saw it happen to so-
and-so, or would she say it happened to her.’’
Trial counsel was unable to contact T in advance
despite efforts to do so. He did not know how T would
testify. The court’s finding that the petitioner failed to
establish that the victim’s suggestion that the petitioner
had abused T was demonstrably false was not clearly
erroneous. None of the petitioner’s arguments in this
regard help his cause. A lack of reports substantiating
abuse or a prior denial by T of abuse did not conclu-
sively indicate that the alleged abuse did not occur.3
Furthermore, when asked to clarify, the victim indi-
cated in the diagnostic interview that T had told this
information to her. Whether T was abused and whether
T told the victim that she had been abused are different
questions. Trial counsel’s decision not to present cer-
tain testimonial evidence that might well have turned
out to be harmful to the defense was a strategic decision
that we will not second-guess. Because this decision
was based on sound trial strategy, this claim fails the
first prong of Strickland.4
II
The petitioner claims that the habeas court erred in
rejecting his claim that trial counsel rendered ineffec-
tive assistance by failing adequately to impeach VJ as
to several matters. He argues that VJ’s testimony should
have been impeached by use of a prior inconsistent
statement, in which he had informed an investigator
with the department that he was unaware of any sexual
abuse. This statement purportedly contradicted his trial
testimony to the effect that he saw the petitioner abuse
the victim. There was also a claimed inconsistency
between his trial testimony, in which he described the
incident of abuse he said occurred in the petitioner’s
bedroom, and the victim’s statement in her diagnostic
interview that that particular incident of abuse had
occurred in her bedroom. We disagree.
At the underlying criminal trial, VJ testified that after
the victim disclosed the abuse to him, he saw the peti-
tioner take the victim into the petitioner’s bedroom,
which had been the victim’s bedroom before the peti-
tioner moved in. VJ looked under a crack in the door
and saw the victim lying naked on pillows. He stated
that this was the only time that he saw evidence of
abuse.
At the habeas trial, Meredith testified that he did
not consider the victim’s description in her diagnostic
interview of an incident in which the petitioner laid
pillows on the floor of her bedroom and sexually
assaulted her to be necessarily inconsistent with VJ’s
description of the event. First, the two incidents may
have been two separate instances of sexual assault,5
and, second, the victim and VJ may have been using
different words to describe the same room, in that the
petitioner moved into the bedroom that previously had
been the victim’s bedroom. An investigator for the
department testified that VJ informed her ‘‘that he had
witnessed an event, but that [he] wasn’t specific about
sexual abuse,’’ and, thus, the investigator concluded
that he had not witnessed sexual abuse. This conclusion
did not rule out the possibility that he had observed
such abuse.
The habeas court concluded that trial counsel had
thoroughly and effectively cross-examined VJ. The
court found that the cross-examination revealed ‘‘inac-
curacies in a prior statement given to law enforcement,
inconsistences in his direct testimony, and bias against
the petitioner. The court note[d] for emphasis the on
the stand recantation regarding witnessing a sexual
assault of the victim by the petitioner on Super Bowl
Sunday.’’
Meredith’s cross-examination of VJ was thorough and
did not fall below an objective standard of reasonable-
ness. VJ’s description of the pillow incident was not
necessarily inconsistent with the victim’s description
in her diagnostic interview. VJ’s vague description to
the investigator was not necessarily inconsistent with
his later description of the pillow event during his trial
testimony. The petitioner’s argument overlooks a very
substantial reason not to cross-examine extensively on
this subject: each time the stories were told, the jury
would hear one more recitation of sexual abuse by the
petitioner. Even if a detail were different, the overall
picture may well have been reinforced in the jury’s
collective mind. We have no basis to second-guess Mer-
edith’s tactical decision to not cross-examine VJ as to
these issues. See Velasco v. Commissioner of Correc-
tion, supra, 119 Conn. App. 172.6
The judgment is affirmed.
In this opinion the other judges concurred.
* 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 identify may be
ascertained. See General Statutes § 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The petitioner appealed from the judgment of the trial court to the
Appellate Court, and pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1, the appeal was transferred to the Supreme Court.
2
There is no evidence that T denied the abuse. T did not testify at the
criminal trial, and Meredith testified at the habeas trial that he was unable
to speak with T prior to the criminal trial.
3
The petitioner further argues that trial counsel’s investigation on the
issue of whether T was abused was deficient for failing to discover that no
records existed indicating that T had been abused. The nonexistence of
such records, the petitioner argues, would demonstrate that the victim’s
allegation of abuse regarding T was false. The issue of ineffective assistance
of counsel due to an inadequate investigation for failing to discover the
nonexistence of certain records was not before the habeas court. As stated
by the habeas court during trial, however, the nonexistence of records does
not conclusively demonstrate that T was not abused.
4
The petitioner now criticizes his trial counsel for not having brought up
the suggestion that he had sexually abused another child, in order then to
suggest that the abuse did not occur. As it was, the jury never heard a
suggestion that the petitioner had abused another minor victim. It is unrealis-
tic to posit that counsel were constitutionally ineffective by failing to elicit
testimony regarding the possibility that the petitioner abused another child.
5
In the victim’s description in her diagnostic interview of an incident of
abuse involving pillows on the floor, she described an act of fellatio and
did not state that she was naked.
6
The petitioner also claims that ‘‘the combined weight of counsel’s multi-
ple deficiencies prejudiced the petitioner.’’ The habeas court concluded that
‘‘nothing in the petitioner’s analysis . . . [was] sufficient to overcome the
presumption of constitutionally sufficient legal representation, whether con-
sidered separately or cumulatively with the petitioner’s other claims.’’ We
have concluded that the habeas court properly determined that counsel’s
representation was constitutionally sufficient regarding the petitioner’s
claims individually and we decline to recognize a claim that the purported
errors, viewed cumulatively, rendered counsel’s performance constitution-
ally insufficient. See McGee v. Commissioner of Correction, 157 Conn. App.
863, 864 n.1, 118 A.3d 140, cert. denied, 318 Conn. 903, 122 A.3d 633 (2015).