Antwon W. v. Commissioner of Correction ( 2017 )

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ANTWON W.* v. COMMISSIONER
OF CORRECTION
(AC 37661)
Lavine, Beach and Flynn, Js.
Argued January 10—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Peter Tsimbidaros, assigned counsel, for the appel-
lant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
FLYNN, J. The petitioner, Antwon W., appeals from
the judgment of the habeas court denying his second
amended petition for a writ of habeas corpus alleging
ineffective assistance of counsel. He claims that, con-
trary to the decision of the habeas court, his trial coun-
sel rendered ineffective assistance by failing to (1)
adequately protect his constitutional right to an impar-
tial jury; (2) object to the jury instructions provided by
the trial court, Cremins, J.,1 regarding the proper use
of constancy of accusation evidence; (3) adequately
cross-examine or otherwise impeach the victim; (4)
advise him to accept the state’s plea offer rather than
proceed to trial; and (5) investigate and call witnesses
who would have provided exculpatory testimony. We
affirm the judgment of the habeas court.
The petitioner sexually assaulted his twelve year old
cousin four times from 2002 through 2003 at his uncle’s
home. State v. Antwon W., 118 Conn. App. 180, 181–84,
982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991
A.2d 568 (2010). In 2006, the petitioner, who was eigh-
teen years old at the time of the assaults, was convicted
of one count of sexual assault in the third degree, six
counts of sexual assault in the first degree,2 and one
count of risk of injury to a child. Id., 184–85. Attorney
Gregory St. John represented the petitioner throughout
the criminal trial. Judge Cremins sentenced the peti-
tioner to an effective term of fifteen years imprisonment
followed by fifteen years of special parole. Id., 185.
This court upheld the petitioner’s conviction on direct
appeal. Id., 182.
Thereafter, the petitioner filed a second amended
petition for a writ of habeas corpus setting forth numer-
ous claims of ineffective assistance of counsel.3 As rele-
vant to this appeal, the petitioner alleged that Attorney
St. John performed deficiently because he failed to (1)
ensure that the petitioner was tried before an impartial
jury by neglecting to ask prospective jurors during voir
dire whether they had been the victim of sexual assault,
and by failing to investigate potential juror bias after
one of the jurors expressed concerns during delibera-
tions; (2) object to Judge Cremins’ instructions to the
jury regarding the proper use of constancy of accusation
evidence; (3) adequately cross-examine or otherwise
impeach the state’s witnesses; (4) provide the petitioner
with adequate legal advice regarding the state’s plea
offers, or advise him that accepting a plea offer, rather
than proceeding to trial, was in his best interests; and (5)
investigate and call witnesses who could have provided
exculpatory evidence.4 The petitioner further alleged
that, if not for these acts and omissions by Attorney
St. John, there was a reasonable probability he would
have prevailed in his criminal trial.
A habeas trial was held on September 23 and 24,
2014. Prior to trial, the respondent, the Commissioner
of Correction, filed a motion in limine to preclude the
petitioner from introducing testimony from the jurors
in his criminal trial regarding their deliberative process.
The habeas court granted that motion and subsequently
denied the petitioner’s motion for reconsideration. At
the habeas trial, the petitioner testified on his own
behalf and presented testimony from Attorney Leon
Kaatz, an expert in criminal defense practice. Attorney
St. John testified for the respondent. The habeas court
denied the petitioner’s second amended petition in a
memorandum of decision dated December 18, 2014.
Following the granting of certification to appeal, this
appeal followed. Additional facts and procedural his-
tory will be set forth where necessary.
We begin by setting forth our standard of review and
the legal principles that govern claims of ineffective
assistance of counsel. ‘‘The habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . Accordingly, [t]he habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.
. . . The application of the habeas court’s factual find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Citations omitted; internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012).
As the United States Supreme Court articulated in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), ‘‘[a] claim of ineffective
assistance of counsel consists of two components: a
performance prong and a prejudice prong. 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. . . . Put another way, the peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing and skill in the criminal law. To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Because both prongs . . . must
be established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either
prong.’’ (Citations omitted; internal quotation marks
omitted.) Thompson v. Commissioner of Correction,
131 Conn. App. 671, 690–91, 27 A.3d 86, cert. denied,
303 Conn. 902, 31 A.3d 1177 (2011).
Furthermore, in analyzing the performance prong of
Strickland, our focus is on ‘‘whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . .
‘‘Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct. . . . At the
same time, the court should recognize that counsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment.’’ (Citation omit-
ted; internal quotation marks omitted.) Gaines v. Com-
missioner of Correction, supra, 306 Conn. 679–80.
As a preliminary matter, the petitioner argues that
we should apply the cumulative error doctrine in
determining whether he was prejudiced by Attorney
St. John’s purported deficiencies. Our appellate courts,
however, have consistently declined to adopt this
method of review. ‘‘When faced with the assertion that
the claims of error, none of which individually consti-
tuted error, should be aggregated to form a separate
basis for a claim of a constitutional violation of a right
to a fair trial, our Supreme Court has repeatedly
decline[d] to create a new constitutional claim in which
the totality of alleged constitutional error is greater
than the sum of its parts.’’ (Internal quotation marks
omitted.) Anderson v. Commissioner of Correction,
148 Conn. App. 641, 645, 85 A.3d 1240, cert. denied, 311
Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson
v. Dzurenda, U.S. , 135 S. Ct. 201, 190 L. Ed. 2d
155 (2014); see State v. Tillman, 220 Conn. 487, 505,
600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.
Ct. 3000, 120 L. Ed. 2d 876 (1992). Because it is not
within the province of this court to reevaluate decisions
of our Supreme Court; Anderson v. Commissioner of
Correction, supra, 645; we lack authority under the
current state of our case law5 to analyze the petitioner’s
ineffective assistance claims under the cumulative error
rule. Moreover, application of the cumulative error rule
would not entitle the petitioner to relief because not one
of Attorney St. John’s purported trial errors constitutes
deficient performance under Strickland. See Hender-
son v. Commissioner of Correction, 104 Conn. App.
557, 567, 935 A.2d 162 (2007), cert. denied, 285 Conn.
911, 943 A.2d 470 (2008).
That threshold issue resolved, and mindful of the
above legal principles, we now turn to the petitioner’s
claims on appeal.
I
The petitioner first claims that the habeas court erred
in concluding that Attorney St. John did not render
ineffective assistance of counsel by failing to adequately
protect his constitutional right to an impartial jury. In
support of this claim, the petitioner argues (1) that
Attorney St. John was ineffective because, during voir
dire, he neglected to ask any of the potential jurors
whether they or someone close to them had been the
victim of sexual assault; (2) that Attorney St. John was
ineffective because he failed to request a more search-
ing inquiry into potential juror bias or misconduct after
a juror raised concerns about another juror’s ‘‘personal
past’’ during deliberations; and (3) that the habeas court
improperly granted the respondent’s motion in limine
precluding him from calling the jurors as witnesses in
his habeas trial to establish that juror bias existed and
prejudiced him in his criminal trial.6 We address each
of these arguments in turn.
A
The petitioner first contends that Attorney St. John
rendered ineffective assistance during voir dire because
he failed to ask potential jurors whether they or some-
one close to them had been a victim of sexual assault.
We disagree.
The record discloses the following facts. The trial
court, Prescott, J., conducted jury selection from April
17 through April 19, 2006. At the start of each day, prior
to the commencement of individual voir dire ques-
tioning, Judge Prescott informed each of the venire
panels that the purpose of voir dire was to ascertain
each prospective juror’s ability to be impartial,
instructed the panel to answer questions accurately
and to the best of their ability, and posed an array of
preliminary questions to the panels, including: ‘‘Have
you had any life experiences that in any way relate to
the charges in this case that might prevent you from
being a fair and impartial juror? Do you have any bias
or prejudices that could in any way come into play in
sitting on this case?’’ Several members of the venire
responded affirmatively to these preliminary questions
and were ultimately excused for cause following indi-
vidual voir dire because either they or their close friend
or family member had been the victim of sexual assault.
This is an indication in the record that Judge Prescott’s
preliminary questions were adequate to deal with any
bias or prejudice that the prospective jurors may have
had because either they or persons close to them had
been victimized by sexual assault crimes.
None of the six venire members ultimately selected
as jurors responded affirmatively to any of Judge Pres-
cott’s preliminary questions. The six prospective jurors
then appeared before Judge Prescott, the prosecutor,
and Attorney St. John for individual voir dire. Judge
Prescott began each examination by asking the prospec-
tive juror whether he or she was aware of anything that
they thought might affect their ability to be fair and
impartial. Each prospective juror responded in the neg-
ative. One prospective juror, V.B.,7 stated in response
to a subsequent question from Judge Prescott that she
had ‘‘trouble’’ with the nature of the charges, but stated
she could nonetheless be fair and impartial. Attorney
St. John asked V.B. whether there was ‘‘any kind of a
barrier to [her] being able to be a fair and impartial
juror,’’ to which V.B. responded that she believed she
would be fair. Attorney St. John further asked V.B. if
there was anything else the court and counsel should
know that might impact her ability to be fair and impar-
tial, and V.B. answered that she had lost a child.
Another prospective juror, J.B., informed Judge Pres-
cott that she was ‘‘a little partial to the sexual offenses’’
because, given her training and work as a nurse, she
tended to be more of a victim advocate. She indicated,
however, that she would try to be fair. The prosecutor
elicited from J.B. that, other than a patient she encoun-
tered at work, she had never known anyone who had
been the victim of sexual assault. The four other pro-
spective jurors were all asked, by Attorney St. John,
the prosecutor or both of them, whether the nature of
the charges or anything else impacted their ability to
be impartial, and none of them raised concerns about
past experiences with sexual assault.
In his habeas petition, the petitioner alleged that
Attorney St. John provided ineffective assistance by
failing to ask the jurors whether they had been the
victim of sexual assault, which resulted in the empan-
elment of a juror who was biased against persons
accused of sexual assault crimes.8 The habeas court
found that Attorney St. John’s failure to pose this spe-
cific question did not amount to deficient performance
because he and the prosecutor had ‘‘cover[ed] the same
territory’’ by asking the jurors whether anything about
the charges or their life experiences impacted their
impartiality. The habeas court concluded that, under
these circumstances, the failure to specifically ask
whether the jurors had been a victim of sexual assault,
‘‘using those exact words, was inconsequential.’’ We
discern no error in that reasoning on appeal.
‘‘Jury impartiality is a core requirement of the right
to trial by jury guaranteed by the constitution of Con-
necticut, article first, § 8, and by the sixth amendment
to the United States constitution.’’ (Internal quotation
marks omitted.) State v. Miller, 163 Conn. App. 772,
776, 137 A.3d 105, cert. denied, 321 Conn. 905, 136 A.3d
1273 (2016). The federal and state constitutions require
juries to be ‘‘composed of individuals able to decide
the case solely on the evidence and apply the law in
accordance with the court’s instructions . . . .’’ State
v. Griffin, 251 Conn. 671, 691–92, 741 A.2d 913 (1999).
Voir dire is critical to protecting the right to an impartial
jury because it reveals ‘‘information upon which the
trial court may decide which prospective jurors . . .
should be excused for cause . . . and . . . informa-
tion to counsel which may aid them in the exercise of
their right to peremptory challenge.’’ (Internal quotation
marks omitted.) State v. Faust, 237 Conn. 454, 462, 678
A.2d 910 (1996).
It is well established, however, that in determining
whether trial counsel performed deficiently under
Strickland, ‘‘[a]n attorney’s line of questioning on exam-
ination of a witness clearly is tactical in nature. [As
such, this] court will not, in hindsight, second-guess
counsel’s trial strategy.’’ (Internal quotation marks
omitted.) Antonio A. v. Commissioner of Correction,
148 Conn. App. 825, 832, 87 A.3d 600, cert. denied, 312
Conn. 901, 91 A.3d 907 (2014). Likewise, courts cannot
prescribe a specific manner by which attorneys conduct
voir dire, a process that ‘‘is inevitably a call upon [the
trial lawyer’s] experience and intuition.’’9 Romero v.
Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989), cert. denied
sub nom. Romero v. Collins. 494 U.S. 1012, 110 S. Ct.
1311, 108 L. Ed. 2d 487 (1990). For example, this court
rejected a claim that the trial court erred in declining
to suggest to trial counsel ways to rephrase voir dire
questions because reviewing courts ‘‘cannot impose on
a trial court the burden of suggesting to parties how
they should conduct their cases.’’ State v. Charlton, 30
Conn. App. 359, 367, 620 A.2d 1297, cert. denied, 225
Conn. 922, 625 A.2d 824 (1993). We therefore indulge
a strong presumption that trial counsel’s lines of inquiry
during voir dire were reasonable. Habeas petitioners
must bear the heavy burden of demonstrating that
‘‘there [was] no . . . tactical justification for the
course taken.’’ (Internal quotation marks omitted.) Taft
v. Commissioner of Correction, 159 Conn. App. 537,
557, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d
954 (2015).
The petitioner has not sustained that burden in the
present case. Although Attorney St. John did not ask
the prospective jurors the specific question of whether
they or someone close to them had been the victim of
sexual assault, the voir dire process as a whole ade-
quately covered those subjects. Judge Prescott, in his
preliminary questions, asked the members of each
venire panel whether they had any ‘‘life experiences’’
or ‘‘bias or prejudices’’ that might color their ability to
return a fair and impartial verdict. Attorney St. John
and the prosecutor then asked each juror individually
whether they knew of anything that might impact their
impartiality. None of the jurors identified anything of
concern, and each expressed confidence she or he
could be impartial. Attorney St. John’s failure to ask a
specific question that would have been largely cumula-
tive of other questions does not render his performance
deficient.10 As we have stated, attorneys need not ques-
tion jurors in any particular manner to be effective.
Accordingly, the petitioner’s claim fails to satisfy the
performance prong of Strickland; we need not reach
the issue of prejudice.
The petitioner further argues, without analysis, that
Attorney St. John should have ‘‘asked that [J.B.] be
excused for cause or should have exercised a peremp-
tory challenge.’’ To the extent the petitioner is
attempting to raise a distinct claim of ineffective assis-
tance, we disagree. This court has consistently recog-
nized that decisions about whether to peremptorily
strike particular jurors are matters of trial strategy. See
Smith v. Commissioner of Correction, 116 Conn. App.
383, 389, 975 A.2d 751, cert. denied, 293 Conn. 925, 980
A.2d 912 (2009); Beverly v. Commissioner of Correc-
tion, 101 Conn. App. 248, 252, 922 A.2d 178, cert. denied,
283 Conn. 907, 927 A.2d 916 (2007); Ziel v. Commis-
sioner of Correction, 89 Conn. App. 371, 378, 873 A.2d
239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
This deference soundly recognizes that a trial attorney
is in the best position to determine whether a particular
venireperson can fairly hear his client’s cause. Here,
J.B. repeatedly indicated that, despite her training and
work as a nurse, she would try to be fair and had
never known anyone who had been the victim of sexual
assault. Given these assurances, any claim by the peti-
tioner that Attorney St. John’s failure to strike J.B. was
outside the realm of reasonable trial strategy lacks
merit.
B
The petitioner next argues that Attorney St. John
performed deficiently by failing to request a more thor-
ough investigation into juror bias or misconduct after
one of the jurors raised concerns during deliberations
about another juror’s ‘‘personal past.’’ We disagree.
The jury began deliberating on May 15, 2006. The
following morning, on May 16, 2006, Judge Cremins
brought one of the jurors, L.B., into the courtroom
because she had ‘‘expressed a concern.’’ The following
exchange ensued:
‘‘The Court: If the concern is something not related
to deliberations, I want you to tell me what that is. If
it’s the other, if the concern relates to the deliberations,
that’s not anything that we can discuss. Okay. Let’s first
of all tell me which it relates to?
‘‘[L.B.]: Well, it came out during deliberations; how-
ever, I think it really doesn’t concern deliberations. I
think it could affect the deliberations, but it’s not really
a result of the deliberations.
‘‘The Court: Let me ask you a couple of questions. Is
it something related to someone’s health?
‘‘[L.B.]: No. . . .
‘‘The Court: It’s not related to personality?
‘‘[L.B.]: No.
‘‘The Court: Is it related at all to their punctuality or
their participation?
‘‘[L.B.]: No.
‘‘The Court: So, it sounds like it’s related then to your
deliberation discussion.
‘‘[L.B.]: It’s her. It’s, I know, I think, if I say these two
words it might clear it up for both of us.
‘‘The Court: I, again, if the concern you have relates
to anything related to the deliberations, whether it’s
the person’s attitude, their participation, their position,
their advocacy, that’s not something we can discuss.
So, if you think it falls into any one of those categories—
‘‘[L.B.]: You may make it hard. . . .
‘‘The Court: I think it sounds like it might be related
to the deliberations in terms of those things that I men-
tioned.
‘‘[L.B.]: I think it can affect deliberations. I don’t
know. That’s it.
‘‘The Court: Well, okay.
‘‘[L.B.]: It’s not a cause because of deliberations. It’s
a personal past thing, someone’s personal past is what
it is. It is my concern how it might relate.
‘‘The Court: Okay. All right. . . . I will ask you to
step outside for just a moment. Thank you.’’ (Empha-
sis added.)
Outside the presence of L.B., Judge Cremins stated
that he did not ‘‘see any reason why we should not
continue.’’ The prosecutor and Attorney St. John agreed
with Judge Cremins. L.B. returned to the courtroom,
and the court informed her that it would not inquire
any further into her concern and instructed her to con-
tinue in the deliberations. The jury returned a guilty
verdict the following day.
In his habeas petition, the petitioner alleged that L.B.
had been referring to a female juror who previously
had been the victim of sexual assault, and that Attorney
St. John rendered ineffective assistance by failing to
request a more searching inquiry into the potential bias.
The habeas court rejected this claim, concluding that
it was pure speculation to suppose that L.B. had been
referring to a juror who had been the victim of sexual
assault, especially in light of each of the jurors’ repre-
sentations during voir dire that none of her or his past
experiences impacted her or his ability to be fair and
impartial. Additionally, citing Warger v. Shauers,
U.S. , 135 S. Ct. 521, 190 L. Ed. 2d 422 (2014), the
habeas court disagreed that Attorney St. John per-
formed deficiently by failing to request a more thorough
inquiry into L.B.’s concerns.11 The habeas court empha-
sized that Warger, while not binding in the present case,
reflects the principle that ‘‘trial courts and litigants must
exercise great caution when asked to intrude upon the
sanctity of deliberations.’’12 Accordingly, the habeas
court concluded that Attorney St. John had to ‘‘tread
lightly’’ in determining how extensively to inquire into
L.B.’s concerns, and that, because the stated bases for
L.B.’s concerns were vague, Attorney St. John’s failure
to request a more extensive investigation did not
amount to deficient performance.
We agree with the habeas court’s ultimate determina-
tion that the petitioner failed to satisfy the performance
prong of Strickland. As an initial matter, we note that
the petitioner made little effort at the habeas trial to
overcome the presumption that Attorney St. John’s
decision not to pursue further questioning of L.B. was
based upon reasonable professional judgment. See
Gaines v. Commissioner of Correction, supra, 306
Conn. 679–80. The petitioner did not question Attorney
St. John about it, nor did he elicit an opinion from
Attorney Kaatz about whether the response was consti-
tutionally adequate.
In any event, our review of the record convinces
us that, under the circumstances, Attorney St. John’s
decision that further inquiry was unnecessary was not
objectively unreasonable. L.B. explained during her
brief colloquy with Judge Cremins that she was con-
cerned about an unnamed female juror’s ‘‘personal
past’’ and how it ‘‘might relate’’ to deliberations. Attor-
ney St. John was not required to infer from these state-
ments that the jury’s deliberations were infected by
actual bias or misconduct. Rather, L.B.’s statements
could easily have been construed as suggesting merely
that the unnamed juror’s past experiences had informed
her understanding of the case, which is entirely proper.
‘‘[J]urors . . . are not expected to lay aside matters
of common knowledge or their own observations and
experiences, but rather, to apply them to the facts as
presented to arrive at an intelligent and correct conclu-
sion.’’ (Internal quotation marks omitted.) State v. War-
holic, 278 Conn. 354, 365, 897 A.2d 569 (2006). Indeed,
Attorney St. John stated following the colloquy that
he believed a further investigation was unnecessary
because ‘‘when [jurors] come into this building . . .
they bring their life experiences with them, and they
bring those life experiences so they can utilize that in
terms of judging credibility of witnesses.’’ Attorney St.
John cannot have performed deficiently for failing to
investigate statements that he reasonably interpreted
to be innocuous.
We certainly do not agree with the petitioner’s argu-
ment that L.B.’s reference to the female juror’s ‘‘per-
sonal past’’ should have alerted Attorney St. John to
the fact that the juror had been the victim of sexual
assault and was therefore biased. L.B.’s statements did
not suggest that any of the jurors had been the victim
of a crime, and even if they did, a juror’s status as a
victim or concealment of information during voir dire
does not mean that the juror cannot be impartial. ‘‘It
is actual bias, rather than bias that is implied on the
basis of a juror’s status [as a victim] or on the basis of
a juror’s dishonesty during voir dire, that is dispositive
in raising a claim of bias from the realm of speculation
to the realm of fact.’’ State v. Myers, 244 Conn. 683,
689–90, 711 A.2d 704 (1998). Each juror repeatedly
stated during voir dire that she or he could return a fair
and impartial verdict based on the evidence, assurances
upon which Attorney St. John was entitled to rely. Cf.
State v. Ziel, 197 Conn. 60, 66, 495 A.2d 1050 (1985) (‘‘it
was not unreasonable for the trial court to assume that
the voir dire examination would disclose any prejudice
upon the part of a prospective juror’’ [internal quotation
marks omitted]).
The petitioner has therefore failed to establish defi-
cient performance. As our Supreme Court has recog-
nized, ‘‘to perform effectively, counsel need not
recognize and raise every conceivable . . . claim.’’
(Internal quotation marks omitted.) Ledbetter v. Com-
missioner of Correction, 275 Conn. 451, 460, 880 A.2d
160 (2005), cert. denied sub nom. Ledbetter v. Lantz,
546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Put
simply, while Attorney St. John could have requested
additional questioning of L.B., we do not believe that,
under these circumstances, he was constitutionally
required to do so to be an effective trial counsel.
The petitioner’s reliance on State v. Brown, 235 Conn.
502, 668 A.2d 1288 (1995), is misplaced. In Brown, our
Supreme Court invoked its supervisory authority to
hold that ‘‘a trial court must conduct a preliminary
inquiry, on the record, whenever it is presented with
any allegations of jury misconduct in a criminal case,
regardless of whether an inquiry is requested by coun-
sel.’’ (Footnote omitted.) Id., 526. The trial court has
discretion to order additional proceedings, or a full
evidentiary hearing, depending on what is disclosed
during the preliminary inquiry. Id.
The petitioner was not entitled to a Brown inquiry
because L.B. stated that her concern related to the
unnamed juror’s ‘‘personal past’’—that is, something
that arose before that juror was subject to voir dire.
Brown does not require an inquiry into allegations of
juror bias or misconduct where the purported taint
accrued prior to voir dire because, in those situations,
‘‘voir dire itself provides a means to uncover [the] bias.’’
State v. Ross, 269 Conn. 213, 248, 849 A.2d 648 (2004).
This court has explained that Brown ‘‘operates in the
sphere of juror misconduct claims, while the voir dire
process properly allows counsel to investigate fully
bias, preconceived notions and the like. The voir dire
process is designed to weed out those who are unfit to
serve because of prejudicial notions.’’ State v. Malave,
47 Conn. App. 597, 606, 707 A.2d 307 (1998), aff’d, 250
Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S.
1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000); see
also State v. Ross, supra, 247 n.23. In addition to the
voir dire questions posed by Attorney St. John and the
prosecutor, Judge Prescott’s questions to the panel
were designed to reach any partiality or bias. We there-
fore conclude that Attorney St. John was not deficient
for failing to pursue a Brown inquiry because the peti-
tioner was not entitled to any such inquiry. Accordingly,
the habeas court properly concluded that the petitioner
failed to demonstrate deficient performance under
Strickland.
C
The petitioner next argues that the habeas court
improperly precluded him from calling the jurors as
witnesses in his habeas trial to establish that juror bias
existed in his criminal trial. This argument relates solely
to the petitioner’s ability to establish the prejudice
prong of Strickland. Because, however, we are
affirming the decision of the habeas court with regard
to this claim of ineffective assistance on the basis of
the performance prong; see parts I A and B of this
opinion; the issue of prejudice is not germane to our
discussion. ‘‘A court evaluating an ineffective assistance
claim need not address both components of the Strick-
land test if the [claimant] makes an insufficient showing
on one.’’ (Internal quotation marks omitted.) Ouellette
v. Commissioner of Correction, 154 Conn. App. 433,
448 n.9, 107 A.3d 480 (2014). Accordingly, we need not
address the merits of this argument.
II
The petitioner next claims that Attorney St. John
rendered ineffective assistance by failing to object to
the jury instructions provided by Judge Cremins regard-
ing the proper use of constancy of accusation evidence.
We are not persuaded.
The following additional facts are relevant to our
discussion of this claim. During the petitioner’s criminal
trial, the state introduced testimony from three con-
stancy of accusation witnesses, T, B, and S, who each
testified about their conversations with the victim in
early 2004 in which the victim reported that she had
been sexually assaulted on multiple occasions by the
petitioner. See State v. Antwon W., supra, 118 Conn.
App. 193–94. Prior to the testimony of T, Judge Cremins
instructed the jury as follows: ‘‘Ladies and gentlemen,
before this testimony begins, I want to explain a couple
of things to you. There are times when evidence is
admitted for a limited purpose. You can use it for one
purpose, but you can’t use it for another purpose. The
testimony here is going to be one of those situations.
So, I want to tell you, at this point, the purpose for
which you can use the testimony that [T] is about to
give. The evidence by this witness is admitted solely
to corroborate or not corroborate the complainant’s
testimony in court. It is to be considered by you only
in determining the weight and credibility you will
give to the complainant’s testimony given here in
court. This evidence of out-of-court statements by the
complainant of an alleged sexual assault against her,
that is, the complainant, by the [petitioner], is not to
be considered by you to prove the truth of the matter
asserted, that is, the proof of what is said in those out-
of-court statements, but it is to be presented for you
to consider in assessing the credibility for you to give
to the complainant’s in-court testimony.’’ (Emphasis
added.) Judge Cremins repeated a similar limiting
instruction before B and S testified, and again after
S testified.
After the close of evidence, Judge Cremins charged
the jury, in relevant part, as follows: ‘‘Constancy of
accusation. The complainant testified here in court
before you. Her testimony in court you may use as
evidence and proof of the facts asserted in that testi-
mony and give it the weight you find is reasonable. The
state offered evidence of out-of-court statements made
by the complainant to other persons that the [petitioner]
sexually assaulted her. This court’s recollection of those
persons to whom the alleged victim made such state-
ments are [T], [B] and [S]. Each of these people testified
as to the statements the complainant made to each of
them regarding the [petitioner’s] alleged sexual
assaulting of her. This evidence by each of these wit-
nesses is admitted solely to corroborate or not corrobo-
rate the complainant’s testimony in court. It is to be
considered by you only in determining the weight and
credibility you will give to the complainant’s testi-
mony given here in court.
‘‘This evidence of out-of-court statements by the com-
plainant of a sexual assault against her by the [peti-
tioner] is not to be considered by you to prove the truth
of the matter asserted, the truth of what is said, in those
out-of-court statements, but it is presented for you to
consider in assessing the credibility you will give to
the complainant’s in-court testimony.
‘‘In determining whether these out-of-court state-
ments are corroborative or not corroborative of the
complainant’s testimony in court, you should consider
all the circumstances under which these out-of-court
statements were made and to whom, and whether the
statements made to those persons were or were not
consistent with the complainant’s testimony in court.
‘‘To the extent you find what she said outside the
courtroom is consistent with her testimony in court,
you may find the complainant’s testimony in court to
be corroborated or supported. To the extent you find
what the complainant has said outside the courtroom
is inconsistent with her testimony in court, you may
consider the degree of inconsistency which you may
find, and you may consider the reasons you may find
for the inconsistency in evaluating her testimony given
here in court.’’ (Emphasis added.) Attorney St. John
did not object to this jury instruction or to any of the
limiting instructions provided by Judge Cremins in con-
nection with the testimony of T, B, and S.13
In his habeas petition, the petitioner alleged that
Attorney St. John provided ineffective assistance by
failing to object to the foregoing charge and limiting
instructions, which he asserted encouraged the jury
to consider the constancy of accusation testimony for
substantive purposes, rather than for the limited pur-
pose of corroborating only the fact and timing of the
victim’s complaint. The habeas court rejected this
claim, finding that the petitioner failed to demonstrate
prejudice. The habeas court ruled that, even if the
instructions suggested that the constancy of accusation
testimony could be used to corroborate the victim’s
testimony as to matters beyond the mere fact and timing
of her complaint, any overbreadth ‘‘was very minor and
insubstantial, considering all the other evidence in this
case, and had no discernible effect on the jury’s deliber-
ations.’’ The habeas court further found that the con-
stancy of accusation evidence was properly limited to
only those details necessary to associate the victim’s
reports to the charged assaults, and that the instructions
‘‘played no role in persuading the jurors to accept or
reject the victim’s accusations against the petitioner
. . . .’’
The petitioner claims that the habeas court erred in
concluding that the jury instructions did not prejudice
him. He argues that the language, repeated in each
instruction, that the evidence was admitted to ‘‘corrobo-
rate or not corroborate the victim’s testimony in court’’
encouraged the jury to consider the evidence for sub-
stantive purposes, in violation of State v. Troupe, 237
Conn. 284, 677 A.2d 917 (1996). In Troupe, our Supreme
Court concluded that constancy of accusation wit-
nesses ‘‘may testify only with respect to the fact and
timing of the victim’s complaint; any testimony by the
witness regarding the details surrounding the assault
must be strictly limited to those necessary to associate
the victim’s complaint with the pending charge, includ-
ing, for example, the time and place of the attack or
the identity of the alleged perpetrator. . . . Thus, such
evidence is admissible only to corroborate the victim’s
testimony and not for substantive purposes.’’14 Id., 304.
We agree with the habeas court that, even if we were
to assume that Attorney St. John’s failure to object to
the challenged language of the instructions amounted
to deficient performance, the petitioner failed to dem-
onstrate prejudice.
To establish prejudice under the Strickland test,
habeas petitioners ‘‘must show that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome. . . .
[T]he question is whether there is a reasonable probabil-
ity that, absent the [alleged] errors, the [fact finder]
would have had a reasonable doubt respecting guilt.
. . .
‘‘In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or the jury. . . . Some errors
will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial
effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been
affected by errors than one with overwhelming record
support. . . . [T]he ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose
result is being challenged. . . . The benchmark for
judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper function-
ing of the adversarial process that the trial cannot be
relied on as having produced a just result.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, supra, 306 Conn. 688–89.
As an initial matter, we disagree that, considered in
their entirety, the jury instructions were likely to have
misled the jury into considering the constancy of accu-
sation evidence for substantive purposes. See Hickey
v. Commissioner of Correction, 162 Conn. App. 505,
521, 133 A.3d 489 (2016) (‘‘[t]he whole charge must
be considered from the standpoint of its effect on the
[jurors] in guiding them to the proper verdict . . . and
not critically dissected in a microscopic search for pos-
sible error’’ [internal quotation marks omitted]).
Despite any arguable imprecision in the language pro-
viding that the constancy evidence may be considered
as ‘‘corroborating or not corroborating the victim’s testi-
mony in court,’’ the instructions also provided that the
victim’s out-of-court statements are ‘‘not to be consid-
ered by you to prove the truth of the matter asserted,
that is, the proof of what is said in those out-of-court
statements . . . .’’15 The use of this language, which
clearly distinguishes between constancy of accusation
evidence and substantive evidence, diminishes the like-
lihood that the instructions misled the jury and preju-
diced the petitioner. See State v. Daniel W. E., 322 Conn.
593, 613–14, 142 A.3d 265 (2016).16
Furthermore, we agree with the habeas court’s find-
ing that, considering the totality of the evidence admit-
ted in the petitioner’s criminal trial, any overbreadth in
the constancy of accusation instructions had no effect
on the jury’s decision to credit the testimony of the
victim, who testified in graphic detail about four
instances in which the petitioner sexually assaulted her.
Attorney St. John attempted to impeach the victim’s
credibility by emphasizing that she did not report the
assaults until months after they allegedly occurred, and
had struggled to recall certain details surrounding the
assaults. The victim’s inability to recall extended only
to minor details, however, and her statement to the
police, which was admitted into evidence without limi-
tation as a full exhibit, showed that she remained con-
sistent with regard to the details of the assaults
themselves.
More significantly, substantial evidence corroborated
the victim’s testimony that she delayed in reporting
the assaults not because she had fabricated them, but
because she was afraid of the petitioner and thought
that the assaults were her fault. Diane Edell, a clinical
social worker and expert in the field of child sexual
abuse, testified that child victims do not typically dis-
close their abuse immediately, but, rather, do so reluc-
tantly and incrementally, often after a significant
passage of time. This dynamic is especially prevalent,
Edell explained, where the victim’s assailant is a close
family member, because the victim retains a sense of
loyalty toward the assailant and does not want to get
them into trouble. Consistent with the testimony of the
victim and Edell, T and S testified that the victim was
crying and seemed reluctant and afraid to tell them
about the assaults.17 Sara Kasper, the physician who
treated the victim after she reported the assaults to the
police, testified that the victim identified her ‘‘cousin’’
as the person who assaulted her and became emotional
when discussing the details of the abuse.18 B also testi-
fied that, during the summer of 2003—when the assaults
were still ongoing—the victim indicated that she was
frightened of the petitioner and was afraid to visit her
uncle’s house if the petitioner were there. B recalled
one occasion during that time period when, while bring-
ing the victim to her uncle’s house, the victim started
to cry after learning that the petitioner would be there.
Accordingly, the state’s case against the petitioner
was strong even without the constancy of accusation
evidence because the credibility of the victim’s testi-
mony was bolstered by independent sources. See State
v. Samuels, 273 Conn. 541, 565, 871 A.2d 1005 (2005)
(improper use of constancy of accusation evidence not
prejudicial where state’s case relied on independent
sources of evidence); State v. Kelly, 256 Conn. 23, 40,
770 A.2d 908 (2001) (same). As this court has observed,
‘‘[t]he stronger the case, the less probable it is that
a particular error caused actual prejudice.’’ (Internal
quotation marks omitted.) Weinberg v. Commissioner
of Correction, 112 Conn. App. 100, 115, 962 A.2d 155,
cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009). We
therefore conclude that the petitioner failed to demon-
strate a reasonable probability that, had Attorney St.
John objected and obtained jury instructions that con-
formed more precisely to the limitations of Troupe, the
result of his criminal trial would have been different.
Accordingly, the habeas court properly rejected this
claim of ineffective assistance of counsel.
III
The petitioner next claims that ‘‘the habeas court
erred in denying the claim of ineffective assistance of
counsel. Trial counsel failed to adequately [cross-exam-
ine] and otherwise impeach the [victim].’’ We decline to
review this claim because it was inadequately briefed.19
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs. . . . The parties may not
merely cite a legal principle without analyzing the rela-
tionship between the facts of the case and the law
cited.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868(2016).
In his brief, the petitioner began by observing that
‘‘the direct and cross-examinations of the [victim] were
of paramount importance’’ because the state’s case
‘‘hinged’’ on the victim’s credibility. He then sets forth
numerous paragraphs of case law discussing the Strick-
land performance standard in the context of cross-
examinations. The petitioner makes no attempt, how-
ever, to analyze how Attorney St. John’s cross-examina-
tion or impeachment of the victim fell below the
objective standard of reasonableness. He does not iden-
tify any subject matter that Attorney St. John could have
explored but failed to explore. The only substantive
discussion concerns Attorney St. John’s failure to object
to evidence adduced by the prosecutor during the vic-
tim’s direct examination, an entirely distinct theory of
ineffective assistance. The petitioner’s claim as it relates
to inadequate cross-examination is entirely unsup-
ported by analysis or citation to the record. Accordingly,
we decline to review it.
IV
The petitioner’s next claim is that Attorney St. John
rendered ineffective assistance because he failed to
provide the petitioner with adequate legal advice
regarding whether to accept the state’s plea offers. Spe-
cifically, he claims that Attorney St. John failed to ‘‘ren-
der any advice, candid or otherwise, that [the petitioner]
should accept any [plea] offers made.’’ A careful review
of the petitioner’s brief, however, reveals that his claim
on appeal relates solely to the performance prong of
Strickland, whereas the habeas court rejected this
claim of ineffective assistance on the basis of the preju-
dice prong. Crediting Attorney St. John’s testimony that
the petitioner expressed a ‘‘strong desire’’ to have the
jury decide the case, the habeas court concluded that
the petitioner failed to demonstrate that he would have
accepted any plea offer had Attorney St. John recom-
mended that he do so. Because the petitioner has not
challenged the habeas court’s finding with regard to
prejudice, he cannot prevail on this claim. See Fullenwi-
ley v. Commissioner of Correction, 163 Conn. App. 761,
765, 134 A.3d 1259, cert. denied, 321 Conn. 907, 135
A.3d 279 (2016).
V
The petitioner’s final claim is that Attorney St. John
was ineffective because he ‘‘failed to conduct an ade-
quate investigation which would have led to available
exculpatory evidence.’’ The petitioner’s brief discusses
three pieces of allegedly overlooked evidence. The first
concerns a witness, D, whom the petitioner claims
could have impeached part of the victim’s testimony.
The habeas court correctly found that the petitioner
failed to demonstrate prejudice with regard to this claim
because D did not testify at the habeas trial. This court
has explained that the failure to elicit testimony in the
habeas court from allegedly exculpatory witnesses pre-
cludes a finding of prejudice because ‘‘[w]ithout their
testimony, the habeas court [cannot] evaluate them as
witnesses, nor [can] it assess the import of their testi-
mony.’’ Henderson v. Commissioner of Correction, 129
Conn. App. 188, 194, 19 A.3d 705, cert. denied, 303
Conn. 901, 31 A.3d 1177 (2011); see also Townsend v.
Commissioner of Correction, 116 Conn. App. 663, 668,
975 A.2d 1282 (petitioner failed to show prejudice where
only testimony at habeas trial regarding exculpatory
witness came from petitioner), cert. denied, 293 Conn.
930, 980 A.2d 916 (2009).
The petitioner also argues that Attorney St. John
failed to investigate a third party culpability witness
who he refers to as ‘‘Tootsie.’’ Although the petitioner
testified about this witness at the habeas trial and men-
tioned the issue in his posttrial brief, the petitioner
failed to specifically allege the failure to call this witness
in his second amended habeas petition. Accordingly,
the habeas court was not obligated to consider the
claim, nor is this court on appeal. ‘‘Claims raised for
the first time in posttrial briefs are not reviewable by
the habeas court or by this court on appeal.’’ Davis v.
Commissioner of Correction, 160 Conn. App. 444, 454
n.7, 124 A.3d 992, cert. denied, 319 Conn. 957, 125 A.3d
1012 (2015). We also note that, although the habeas
court did not rule on this claim, the petitioner failed
as a matter of law to demonstrate prejudice because
Tootsie did not testify at the habeas trial, thus making
it impossible for the habeas court to assess the signifi-
cance of Tootsie’s potential testimony. See Townsend
v. Commissioner of Correction, supra, 116 Conn.
App. 668.
Finally, the petitioner cites Attorney St. John’s failure
to offer into evidence the victim’s records from the
Department of Children and Families.20 The habeas
court found that the petitioner abandoned this claim
because he failed to address it in his posttrial brief. The
petitioner has not challenged the habeas court’s finding
of abandonment. Accordingly, we decline to address
this claim.
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 use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
Judge Cremins presided over the evidentiary portion of the victim’s
criminal trial and sentencing. Judge Prescott presided over jury selection.
2
The petitioner was convicted of three counts of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a) (1), and three counts
of sexual assault in the first degree in violation of § 53a-70 (a) (2). State v.
Antwon W., supra, 118 Conn. App. 181–82. On June 22, 2015, the trial court,
Fasano, J., granted the petitioner’s motion to correct an illegal sentence,
concluding that the petitioner’s sentences under § 53a-70 (a) (1) and (2)
violated his double jeopardy rights because he was sentenced twice for the
same offense. Accordingly, the court ordered that the petitioner’s conviction
of the three counts of sexual assault in the first degree under § 53a-70 (a)
(2) be dismissed and that the sentences imposed on that conviction be
vacated. Thereafter, the defendant filed a second motion to vacate an illegal
sentence, asserting that the vacation of his conviction of those three counts
rendered the total effective sentence imposed by Judge Cremins illegal. The
court, Fasano, J., denied that motion on December 9, 2015, reasoning that
the sentencing court did not rely on any of the vacated charges in imposing
the petitioner’s sentence. The petitioner’s appeal from that decision is pend-
ing before this court.
3
The petitioner also alleged claims of judicial misconduct and actual
innocence. The habeas court deemed those claims abandoned because they
were not briefed or otherwise discussed by the petitioner in the habeas pro-
ceedings.
4
The petitioner also alleged that his trial counsel was ineffective by failing
to object to the state’s filing of a substitute information prior to the start
of jury selection that added a number of additional charges; by failing to
adequately prepare defense witnesses prior to trial; by failing to object to
expert testimony offered by the state; by introducing evidence damaging to
the defense; and by performing inadequately during closing argument. The
habeas court found each of those claims to be without merit, and the
petitioner has not challenged those findings in this appeal. The petitioner
also alleged that his trial counsel was ineffective for failing to provide him
with adequate legal advice about whether to testify at his criminal trial, and
by failing to obtain the victim’s records from the Department of Children
and Families. The habeas court found that those claims had been abandoned
and did not address them.
5
We note our Supreme Court’s recent decision in Hinds v. Commissioner
of Correction, 321 Conn. 56, 136 A.3d 596 (2016), in which the court declined
to address whether the cumulative error doctrine was applicable in habeas
proceedings because the cumulative effect of the claimed improprieties
would not have justified relief under that doctrine. Id., 97 (‘‘We are not
persuaded that improprieties of this magnitude present a colorable basis
for application of the cumulative error rule applied by the federal courts.
Therefore, we need not consider whether our case law [declining to adopt
the cumulative error rule] is in conflict with federal law.’’).
6
The petitioner also contends that Attorney St. John rendered ineffective
assistance by failing to object to the prosecutor’s improper attempts during
voir dire to implant bias into potential jurors’ minds by posing questions
that previewed the state’s theory of the case. See State v. Lugo, 266 Conn.
674, 684, 835 A.2d 451 (2003) (‘‘[A]ll too frequently such inquiries [during
voir dire] represent a calculated effort on the part of counsel to ascertain
before the trial starts what the reaction of the venire[person] will be to
certain issues of fact or law or, at least, to implant in his mind a prejudice
or prejudgment on those issues. Such an effort transcends the proper limits
of the voir dire and represents an abuse of the statutory right of examination.’’
[Internal quotation marks omitted.]). That claim of ineffective assistance,
however, is not reviewable in this appeal because, although the petitioner
raised the issue in his posttrial reply brief, he failed to allege it in his second
amended petition for a writ of habeas corpus. See Davis v. Commissioner
of Correction, 160 Conn. App. 444, 454 n.7, 124 A.3d 992 (‘‘[c]laims raised
for the first time in posttrial briefs are not reviewable by the habeas court
or by this court on appeal’’), cert. denied, 319 Conn. 957, 125 A.3d 1012(2015); Oliphant v. Commissioner of Correction, 146 Conn. App. 499, 528,
79 A.3d 77 (‘‘[a] habeas court is not required to consider a claim that was
not alleged [in the operative petition for habeas relief]’’), cert. denied, 310
Conn. 963, 83 A.3d 346 (2013).
7
We identify jurors by their initials to protect their privacy. See State v.
Dorans, 261 Conn. 730, 749 n.23, 806 A.2d 1033 (2002).
8
His assertion that one of the selected jurors previously had been the
victim of sexual assault is based upon a concern raised by one of the jurors
during the jury’s deliberations, which we discuss in part I B of this opinion.
9
Indeed, reviewing courts are limited in their ability to assess the reason-
ableness of trial counsel’s tactics during voir dire because those tactics may
often be dictated by a particular juror’s demeanor, tone, and other physical
characteristics not visible in the paper record. See State v. Miller, supra,
163 Conn. App. 776 (‘‘demeanor plays an important part’’ in determining
potential jurors’ impartiality [internal quotation marks omitted]). That trial
courts are accorded broad discretion in controlling the manner and scope
of voir dire examinations; see State v. Rios, 74 Conn. App. 110, 114, 810
A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003); reflects
this reality. As the United States Court of Appeals for the Fifth Circuit has
observed: ‘‘Written records give us only shadows for measuring the quality
of such efforts. Indeed, we recognize this cold fact of life by our [deferential]
standard for reviewing the rulings of judges presiding over jury selection.
. . . The point is not that we review claims of ineffectiveness by a similar
standard but rather that the standard by which we review decisions by trial
judges accepts the reality that the selection process is more an art than a
science, and more about people than about rules.’’ Romero v. Lynaugh,
supra, 884 F.2d 878–79.
10
The petitioner relies on Attorney Kaatz’ testimony at the habeas trial
that ‘‘there were some very serious omissions’’ in Attorney St. John’s voir
dire examinations, particularly his failure to ask the prospective jurors
whether they had been the victim of a crime. The habeas court observed
in its memorandum of decision, however, that Attorney Kaatz’ ‘‘critiques of
Attorney St. John’s trial performance reflect more disagreement over litiga-
tion style and personal preference than negligent representation.’’ Although
the habeas court made that observation in an unrelated section of its memo-
randum of decision, it is evident that the habeas court did not accord any
weight to Attorney Kaatz’ opinion that Attorney St. John’s trial decisions
were objectively unreasonable. We cannot reevaluate that determination in
this appeal. ‘‘The habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Saunders v. Commissioner of Correc-
tion, 137 Conn. App. 493, 502, 48 A.3d 728, cert. denied, 307 Conn. 920, 54
A.3d 182 (2012).
11
In Warger, the United States Supreme Court held that rule 606 (b) of
the Federal Rules of Evidence, which precludes evidence from being offered
‘‘about any statement made or incident that occurred during the jury’s
deliberations,’’ bars the admission of ‘‘juror testimony during a proceeding
in which a party seeks to secure a new trial on the ground that a juror
lied during voir dire [in order to conceal bias].’’ (Internal quotation marks
omitted.) Warger v. Shauers, supra, 135 S. Ct. 525. The court reasoned that
the plain text of the rule reflected the ‘‘federal approach’’ to impeachment
of jury verdicts in that it ‘‘prohibit[s] the use of any evidence of juror
deliberations, subject only to the express exceptions for extraneous informa-
tion and outside influences.’’ (Emphasis in original.) Id., 527. Extraneous
information, the court explained, consists of information ‘‘derive[d] from a
source ‘external’ to the jury,’’ such as ‘‘publicity and information related
specifically to the case the jurors are meant to decide, while ‘internal’ matters
include the general body of experiences that jurors are understood to bring
with them to the jury room.’’ Id., 529. The petitioner in Warger sought to
admit an affidavit averring that a juror made statements during deliberations
suggesting that she had lied during voir dire about her impartiality and
ability to award damages for negligence in an automobile crash. Id., 524.
The court concluded that the affidavit contained ‘‘ ‘internal’ ’’ information,
and was therefore inadmissible, because it contained information that may
have informed the juror’s ‘‘general views about negligence liability for car
crashes,’’ but no information providing her or the rest of the jury with
information about the specific car crash at issue in the case. Id., 529.
12
The respondent urges us to apply the restrictive ‘‘federal approach’’
adopted by the court in Warger because rule 606 (b) of the Federal Rules
of Evidence is ‘‘virtually identical’’ to Practice Book § 42-33 and ‘‘the princi-
ples set forth in Warger exist independently in our jurisprudence.’’ We offer
no opinion on these arguments.
13
The petitioner claimed in his direct appeal that the instruction provided
in Judge Cremins’ final charge to the jury misstated the law on the proper
use of constancy of accusation evidence. See State v. Antwon W., supra,
118 Conn. App. 200–201. Because the claim was unpreserved and was not
constitutional in nature, this court declined to review it under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). See State v. Antwon
W., supra, 201. This court also declined to grant relief under the plain error
doctrine. Id., 202; see Practice Book § 60-5.
14
The petitioner claimed in his direct appeal that Judge Cremins abused
his discretion in admitting the constancy of accusation testimony. State v.
Antwon W., supra, 118 Conn. App. 192. In rejecting that claim, this court
explained: ‘‘The constancy of accusation doctrine traces its roots to the
common-law concept of ‘hue and cry’ whereby victims of violent crime were
expected to cry out immediately and alert their neighbors that they had
been violently assaulted. . . . In the context of sexual assault, evidence of
a victim’s ‘hue and cry’ was ‘a necessary prerequisite for a court to hear a
rape case’ such that a woman who had not so complained could not have
her case prosecuted. . . . Until 1974 in Connecticut, the state was required
to offer evidence corroborating a victim’s claims to obtain a conviction for
sexual assault. See, e.g., General Statutes (Rev. to 1969) § 53a-68, which
concerned certain sexual offenses and provided in relevant part: ‘A person
shall not be convicted of any offense under this part, or of an attempt to
commit such offense, solely on the uncorroborated testimony of the alleged
victim, except as hereinafter provided. Corroboration may be circumstantial
. . . .’ The General Assembly repealed this requirement of corroboration
in Public Acts 1974, No. 74-131. Despite the repeal of the corroboration
requirement, in cases such as the present one, the state often seeks to offer
evidence corroborating the victim’s complaint of sexual abuse.
‘‘In State v. Troupe, supra, 237 Conn. 293–306, our Supreme Court reviewed
the state of the constancy of accusation doctrine from the common law to
the present, reaffirming its basic elements. The court acknowledged that
the necessity of the doctrine is to counter the ‘unwarranted, but nonetheless
persistent, view that a sexual assault victim who does not report the crime
cannot be trusted to testify truthfully about the incident.’ Id., 303. The court
detailed the rule, concluding that ‘a person to whom a sexual assault victim
has reported the assault may testify only with respect to the fact and timing
of the victim’s complaint; any testimony by the witness regarding the details
surrounding the assault must be strictly limited to those necessary to associ-
ate the victim’s complaint with the pending charge, including, for example,
the time and place of the attack or the identity of the alleged perpetrator.
. . . Thus, such evidence is admissible only to corroborate the victim’s
testimony and not for substantive purposes. Before the evidence may be
admitted, therefore, the victim must first have testified concerning the facts
of the sexual assault and the identity of the person or persons to whom the
incident was reported.’ Id., 304–305; see also Conn. Code Evid. § 6-11 (c).
‘‘Turning now to the facts of the present case, we do not conclude that
the court abused its discretion in allowing the constancy of accusation
testimony to be admitted. The testimony of T, B and S was preceded by
the victim’s testimony covering the facts of the assaults and the persons to
whom she had reported them. The constancy witnesses’ testimony regarding
the victim’s out-of-court statements properly was limited to the fact that
the victim had complained, the timing of each complaint and necessary
details connecting the complaints to the assaults. Importantly, the testimony
contained no extraneous details of the assaults, and it pertained only to the
approximate time and place the assaults had occurred and the defendant’s
identity as the perpetrator. Such testimony is squarely within the parameters
set forth in Troupe.’’ (Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Antwon W., supra, 118 Conn. App. 195–97.
15
Judge Cremins included this or similar language in the limiting instruc-
tions he provided prior to the testimony of T, B, and S, and in his final
charge to the jury. Although Judge Cremins omitted this language from the
instruction provided after the testimony of S, this omission is inconsequen-
tial, given that the jury had been instructed three times previously that the
constancy evidence could not be considered for substantive purposes and
was subsequently instructed to that effect in the final charge.
16
In Daniel W. E., our Supreme Court suggested that, ‘‘to ensure clarity
in future cases,’’ the standard criminal jury instruction on constancy of
accusation evidence, as well the corresponding § 6-11 (c) of the Connecticut
Code of Evidence, should be modified to explain that such evidence ‘‘is
admissible only for the purpose of negating any inference that, because
there was a delay in reporting the offense, the offense did not occur, and,
therefore, such evidence may be used only in considering whether the
complaint was made, and not to corroborate the substance of the complaint.’’
State v. Daniel W. E., supra, 322 Conn. 616. The court concluded, however,
that the jury instruction provided on constancy of accusation evidence did
not misstate the law regarding the proper use of such evidence. See id.,612–13. The instructional language at issue in Daniel W. E. is largely similar
to the language utilized in the present case. Unlike the present case, however,
the instructions at issue in Daniel W. E. also contained language providing
that constancy evidence is ‘‘only admitted for the limited purpose of corrobo-
rating what the complaining witness, [the victim], has testified to in court
with respect only to the fact and timing of her complaint, the time and place
of the alleged sexual assaults, and the identity of the alleged perpetrator.’’
(Emphasis added; internal quotation marks omitted.) Id., 606.
17
The testimony from T and S regarding the victim’s demeanor and tone
while disclosing the abuse is not considered constancy of accusation evi-
dence and, therefore, is admissible regardless of the limitations of Troupe.
See State v. Burney, 288 Conn. 548, 557–58, 954 A.2d 793 (2008).
18
The victim’s statements to Dr. Kasper were admitted not under the
constancy of accusation doctrine but under the medical treatment exception
to the hearsay rule. See State v. Dollinger, 20 Conn. App. 530, 534–35, 568
A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990).
19
Contrary to the petitioner’s assertion that the habeas court ‘‘erred in
denying’’ this claim, the habeas court never addressed it in its memorandum
of decision.
20
In his brief, the petitioner refers to the records as ‘‘the information
contained in petitioner’s exhibit 24.’’