Crespo v. Commissioner of Correction , 149 Conn. App. 9 ( 2014 )

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RAFAEL CRESPO v. COMMISSIONER
OF CORRECTION
(AC 35372)
Lavine, Alvord and Schaller, Js.
Argued October 22, 2013—officially released March 25, 2014
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellant
(respondent).
Hilary Carpenter, assistant public defender, with
whom, on the brief, was Carolyn Trotta, legal intern,
for the appellee (petitioner).
Opinion
SCHALLER, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting the third amended petition for a writ of
habeas corpus filed by the petitioner, Rafael Crespo.
On appeal, the respondent claims that the habeas court,
in concluding that the petitioner was deprived of his
right to the effective assistance of counsel, improperly
determined that his trial counsel’s deficient perfor-
mance was prejudicial. We agree with the respondent
and, accordingly, reverse the judgment of the habeas
court.
In the underlying criminal matter, the petitioner was
charged with four counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1),
two counts of assault in the third degree in violation
of General Statutes § 53a-61 (a) (1), and one count of
kidnapping in the second degree in violation of General
Statutes § 53a-94. Following a jury trial, he was con-
victed of two counts of sexual assault in the first degree
and one count of assault in the third degree.1 This court
affirmed the judgment of conviction on direct appeal.
State v. Crespo, 114 Conn. App. 346, 969 A.2d 231 (2009),
aff’d, 303 Conn. 589, 35 A.3d 243 (2012). In doing so,
this court determined the jury reasonably could have
found the following facts.
‘‘The [petitioner] met the victim during the summer
of 2002, and the two began dating. At times relevant,
the [petitioner] was a police officer and the victim was
a college graduate student. In the months prior to
December, 2002, the two engaged in sexual activities
together, but this conduct did not include vaginal or
anal intercourse. In December, 2002, the [petitioner]
forcibly engaged in vaginal intercourse with the victim
but, prior to this sexual encounter, she had been a
virgin. On February 4, 2003, the victim sought medical
attention at a college health clinic. Although the victim
reported to a nurse that she had been raped, the victim
declined to report the incident to the police. The victim
believed that if she were to report the incident, the
[petitioner’s] status as a police officer would protect
him and that he would retaliate against her.
‘‘Following this incident, the victim’s physical and
psychological well-being suffered. The victim took
steps to distance herself from the [petitioner]. For
example, on several occasions she did not return the
[petitioner’s] telephone calls or e-mails. The [petitioner]
persisted in his efforts to continue the relationship by
calling and e-mailing the victim. Also, he appeared unin-
vited at both her residence and place of employment.
Nonetheless, the victim’s relationship with the [peti-
tioner] continued, and she accepted favors and gifts
from the [petitioner] and, on occasion, accepted his
invitations to dinner and the like. The [petitioner’s] rela-
tionship with the victim, however, was characterized
by violent outbursts. During an incident in March, 2003,
the [petitioner] unexpectedly visited the victim at her
residence. The [petitioner] angrily accused the victim
of making herself look good so that she could attract
other men. The [petitioner] called the victim a slut and
physically assaulted her by punching her and pulling
her hair. The [petitioner] told the victim that he wanted
to end their relationship, yet the [petitioner] thereafter
contacted the victim. The [petitioner] repeatedly threat-
ened the victim, both implicitly and explicitly, with
physical violence. Although the victim feared the [peti-
tioner], she continued to spend time with him, often in
public settings, and did not report any incidents of
abuse to law enforcement personnel.
‘‘In June, 2003, the victim returned to Connecticut
from a family engagement in another state. The [peti-
tioner] had instructed the victim to call him while she
was away, but the victim had called him only once.
When the victim arrived at the airport, the [petitioner]
was waiting there for her and, taking her by the hand,
angrily led her away from the airport. The [petitioner]
drove the victim to her residence. Upon accompanying
the victim inside, the [petitioner] played the messages
that had been left on the victim’s telephone answering
machine while she was away. Consequently, the [peti-
tioner] heard a message left for the victim from a man
who had met the victim at a local nightclub. The caller
indicated that he thought the victim was attractive and
that he wanted to see her again.
‘‘Upon hearing this message, the [petitioner] became
irate. The [petitioner] physically assaulted the victim
by slapping the victim’s face, pulling her hair, punching
her, kicking her and knocking her to the floor. The
[petitioner] called the man who had left the message
for the victim; he argued and yelled at him while the
victim pleaded for the [petitioner] to stop.
‘‘After the [petitioner] ended the telephone conversa-
tion, he continued his physical assault of the victim.
Despite her protests, the [petitioner] hit, kicked and
punched the victim about her body while yelling at her
and calling her a whore. The [petitioner] punched the
victim in the face and knocked her to the floor. There-
after, the [petitioner] forcibly removed the victim’s
clothing and vaginally raped her. Following the sexual
assault, the [petitioner] left the residence. The victim
reported this assault to her mother but not to the police.
Shortly after this incident, the [petitioner] sent the vic-
tim an e-mail in which he expressed his intent to stop
interacting with the victim. Nevertheless, the [peti-
tioner] later resumed having contact with the victim.
‘‘On May 15, 2004, the [petitioner] drove to the vic-
tim’s place of employment, and the victim permitted
the [petitioner] to take her shopping and to a movie.
The [petitioner] drove the victim to a shopping mall,
where he purchased undergarments for her. Later, while
the two were watching a movie, the [petitioner] became
upset with the victim and hastily left the movie theater.
The victim left the theater with the [petitioner] in his
automobile. Following a dispute over the victim’s sun-
glasses, the [petitioner] became more and more agitated
while driving the victim home. He began striking his
steering wheel and was brandishing a gun. The [peti-
tioner] drove his automobile into a parking lot where
he began to beat the victim. The victim exited the auto-
mobile, but the [petitioner] pursued her and continued
to strike her. The [petitioner] kicked the victim, causing
her to fall to the ground. Among her injuries, the victim
sustained a significant elbow injury. When the victim
was unable to rise from the pavement, the [petitioner]
drove away from the scene. Several minutes later, the
[petitioner] returned and forced the victim into the auto-
mobile by pulling her hair and pushing her into the
passenger seat.
‘‘The victim told the [petitioner] that she did not want
others at her college residence to see her in the condi-
tion that she was in. At her suggestion, the [petitioner]
drove her to his parents’ home, where the victim stayed
for several days. Thereafter, the [petitioner] and his
father drove the victim back to her place of employ-
ment. In the following days, the victim sought treatment
for her injuries from medical personnel at her college.
At this time, the victim suffered emotionally, and her
physical injuries ranged from the injury to her elbow
to dehydration. The victim told a nurse and a physician
that her boyfriend had beaten and sexually assaulted
her. An administrator at the victim’s college also
became aware of the victim’s condition as well as the
victim’s concern for her safety. As a result, the victim
moved into a more secure dormitory at the college.
Despite discussing her claims of abuse with these indi-
viduals associated with her college, the victim declined
to report the incidents of abuse to the police.
‘‘In mid-June, 2004, on the victim’s birthday, the [peti-
tioner] called the victim at her place of employment
approximately fifty times. The victim agreed to go to
dinner with the [petitioner]. After dinner, the two
returned to the victim’s residence. The [petitioner], who
was cordial during the date until this time, became
irritable. He removed his clothing, accused the victim
of staining his shirt during dinner and demanded that
she clean the shirt. Upon the victim’s refusal, the [peti-
tioner’s] anger escalated, and he became verbally abu-
sive. Then, the victim and the [petitioner] engaged in
consensual vaginal intercourse. Afterward, the [peti-
tioner] forcibly engaged in anal intercourse with the
victim against her will. The [petitioner] later left the
victim’s apartment while she was showering.
‘‘The [petitioner] and the victim remained in contact
following this incident. By November, 2004, the victim
had taken steps to end the relationship despite the
[petitioner]’s efforts to continue the relationship. In
December, 2004, the victim reported the incidents of
abuse to a police officer. The [petitioner]’s arrest fol-
lowed.’’ (Footnotes omitted.) Id., 348–53.
Following his unsuccessful direct appeal, the peti-
tioner brought this petition for a writ of habeas corpus,
claiming, inter alia, that his trial counsel, Robert Picker-
ing, was ineffective in failing to investigate and present
at trial the testimony of Jeffrey Cruz, a witness who
would have impeached the testimony of the victim.
Cruz, a lifelong friend of the petitioner, was refer-
enced in the underlying criminal trial through the vic-
tim’s testimony regarding an incident of uncharged
misconduct.2 Specifically, during presentation of the
state’s case-in-chief, the victim testified that the peti-
tioner physically assaulted her at Cruz’ New Jersey resi-
dence in February, 2004. In her specific testimony
concerning the incident of uncharged misconduct, the
victim related the following sequence of events. The
victim and the petitioner had traveled to New Jersey
to stay with Cruz on or about February 14, 2004, with
the intention of staying for the weekend. One morning
during their stay, an argument occurred between the
victim and the petitioner in a second floor bedroom.
In the midst of their argument, the petitioner punched
the victim in the face causing her to fall to the floor
near the bedroom door. He then slammed her hand
with the door and left the residence. The victim, with
visible bruises and cuts on her face, then went down-
stairs where she encountered Cruz. Cruz had heard the
fighting and demanded to know what happened. Before
the victim could explain, Cruz noticed the victim’s phys-
ical injuries. He then asked her to leave or cover her
injuries with cosmetics. After telling him that she had
nowhere to go, Cruz and the victim talked ‘‘for a few
hours.’’ During their discussion, Cruz told the victim
that ‘‘this is how [the petitioner] treats women . . .
you need to break off the relationship and get out of
it . . . [the petitioner] treats women like dogs.’’ The
petitioner, testifying in his own defense during the crim-
inal trial, denied assaulting the victim in New Jersey.
Cruz was never presented as a witness during trial.3
During the habeas trial, Cruz offered a different
account of what occurred during the petitioner’s and
victim’s February, 2004 visit to his residence. Cruz testi-
fied that he observed the petitioner exit his residence
through the backdoor one morning. About five seconds
later, he stopped the victim, who was ‘‘going after’’ the
petitioner, because he wanted to avoid an argument
occurring outside of his residence. He denied hearing
any argument before the victim came downstairs and
also denied observing any injuries, bruising, or cuts on
the victim’s body. In addition, he testified that he did
not tell the victim that the petitioner mistreated women,
treated them like ‘‘dogs,’’ and that his conversation with
her could not have lasted more than ‘‘two or three
minutes.’’
The habeas court determined that Pickering’s failure
to present the testimony of Cruz constituted deficient
performance and, but for such failure, there existed ‘‘a
reasonable likelihood that the outcome of the petition-
er’s criminal trial would have been different . . . .’’4
The court granted the petition, vacated the petitioner’s
conviction, and remanded the case for a new trial. This
appeal followed.5 Additional facts and procedural his-
tory will be set forth as necessary.
As a preliminary matter, we set forth the applicable
standard of review and relevant principles of law that
will guide our analysis. ‘‘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).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. Strickland v. Wash-
ington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)]. This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland . . . [i]t is
axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffec-
tive assistance of counsel consists of two components:
a performance prong and a prejudice prong. . . . The
claim will succeed only if both prongs are satisfied.’’
(Citations omitted; internal quotation marks omitted.)
Bryant v. Commissioner of Correction, 290 Conn. 502,
510, 964 A.2d 1186, cert. denied sub nom. Murphy v.
Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d
242 (2009).
In the present case, the respondent concedes that
the habeas court properly determined that Pickering’s
failure to present Cruz as a witness during the petition-
er’s criminal trial constituted deficient performance.
The respondent’s only claim on appeal is that the court
improperly applied Strickland’s prejudice prong in con-
cluding that, but for Pickering’s deficient performance,
there was a reasonable probability that the outcome of
the underlying criminal trial would have been different.
In order to satisfy the prejudice prong, ‘‘the petitioner
must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . [T]he question is whether
there is a reasonable probability that, absent the
[alleged] errors, the [fact finder] would have had a rea-
sonable 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.’’ (Internal quotation marks omitted.) Gaines
v. Commissioner of Correction, supra, 306 Conn. 688–
89. We note, however, that ‘‘the [Strickland] principles
. . . do not establish mechanical rules. . . . [T]he ulti-
mate focus of inquiry must be on the fundamental fair-
ness of the proceeding whose result is being challenged.
In every case [we] should be concerned with whether,
despite the strong presumption of reliability, the result
of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system
counts on to produce just results.’’ Strickland v. Wash-
ington, supra, 466 U.S. 696.
In support of its claim that the court’s application of
Strickland’s prejudice prong was fundamentally
flawed, the respondent contends that the court failed
to consider the totality of the evidence before the jury.
Specifically, the respondent contends that ‘‘the state
presented substantial independent evidence corrobo-
rating the victim’s testimony that the petitioner sexually
and physically assaulted her, which the habeas court
improperly failed to consider’’ in determining that Pick-
ering’s failure to present Cruz as a witness was reason-
ably probable to produce a different result in the
petitioner’s criminal trial. We agree.6
The impact that Cruz’ ‘‘ostensibly credible’’ testimony
likely would have had on the jury’s verdict in the under-
lying criminal trial ‘‘must be considered in light of all
of the evidence that was before the jury.’’ Griffin v.
Commissioner of Correction, 98 Conn. App. 361, 367,
909 A.2d 60 (2006). ‘‘Some errors will have had a perva-
sive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and
some will have had an isolated, trivial effect.’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, supra, 306 Conn. 689.
Our review of the criminal trial record reveals that
the February, 2004 incident of uncharged misconduct
was ‘‘admitted only insofar as it [was] relevant to the
relationship between the [victim] and the [petitioner].’’7
‘‘It is well established that [t]he jury is presumed, in
the absence of a fair indication to the contrary, to have
followed the court’s instructions.’’ (Internal quotation
marks omitted.) William C. v. Commissioner of Correc-
tion, 126 Conn. App. 185, 190–91, 10 A.3d 115, cert.
denied, 300 Conn. 922, 14 A.3d 1007 (2011); see Strick-
land v. Washington, supra, 466 U.S. 695 (‘‘[t]he assess-
ment of prejudice should proceed on the assumption
that the decisionmaker is reasonably, conscientiously,
and impartially applying the standards that govern the
decision’’). Even assuming, arguendo, that the jury
would have fully credited Cruz’ testimony and discred-
ited the victim’s testimony with respect to the February,
2004 incident of uncharged misconduct, we cannot con-
clude on the record before us that Pickering’s failure
to present Cruz ‘‘likely would have permeated to some
degree every aspect of the trial and raised a reasonable
doubt in the minds of the [jurors] as to the petitioner’s
guilt.’’ Bryant v. Commissioner of Correction, supra,
290 Conn. 523.
To begin with, the state presented evidence indepen-
dent of the victim’s testimony with respect to each
offense for which the petitioner was convicted. Turning
first to the June, 2003 incident and the corresponding
conviction of sexual assault in the first degree, the jury
heard the testimony of the victim’s mother, who testi-
fied that the victim called her shortly after the petitioner
had beaten and raped her in June, 2003. In addition, the
jury was presented with e-mails sent by the petitioner to
the victim shortly after the incident, as well as e-mails
the victim’s mother sent to the police after receiving
the telephone call from the victim. With respect to the
May, 2004 incident and the corresponding conviction
of assault in the third degree, the jury heard the testi-
mony of Judith Hlawitschka, a physician, who testified
that she had examined the victim and found that the
victim had suffered physical injuries consistent with
being knocked to the ground and dragged. In addition,
the jury heard testimony from a dean of the victim’s
college. The dean testified that he met with the victim
in May, 2004, and thought it necessary to facilitate the
victim’s move to a dormitory on campus in light of
her safety concerns. Finally, regarding the June, 2004
incident and corresponding conviction of sexual assault
in the first degree, the jury heard the testimony of Den-
nis Murphree. Murphree testified that he encountered
the victim in the street following the alleged sexual
assault, found her crying uncontrollably, and she ‘‘had
a very stiff walk just like a penguin.’’ In addition, the
jury was presented with several e-mails the petitioner
sent to the victim the day following the June, 2004
incident.
The state also presented the testimony of Samuel
Flores and Nana Duffie Addo, who independently cor-
roborated the petitioner’s aggressive behavior toward
the victim. Flores testified that he and the petitioner
argued over the telephone in June, 2004. The telephone
call ended with the petitioner announcing his intention
to confront Flores. Thereafter, the petitioner called Flo-
res’ place of employment and left aggressive messages
with Flores’ colleagues. Addo testified that she wit-
nessed the petitioner punch doors in the victim’s apart-
ment when Addo, who was staying with the victim at
the time, refused to leave upon his arrival. In addition,
Addo testified that the petitioner acted rather ‘‘irratio-
nal.’’ The testimony of Flores and Addo removes the
evidence concerning the nature of the relationship
between the petitioner and the victim from the realm
of a mere credibility contest. The jury also heard the
testimony of the petitioner’s former supervisor, Ser-
geant Kenith Smith of the East Windsor Police Depart-
ment. Smith testified that the petitioner demonstrated
aggression toward him in a manner akin to the testi-
mony of the victim, Flores, and Addo.8
In contrast to the evidence presented at trial, how-
ever, stands the habeas court’s limited summary
thereof: ‘‘[T]he trial evidence pitted the victim’s testi-
mony against the petitioner’s. Neither person had a
previous criminal record. Both were employed in
respectable careers. The petitioner was a police officer,
and the victim was a graduate student in physics. Foren-
sic evidence played no important role in the case.
Instead, constancy of accusation and medical and psy-
chological evidence regarding signs of abuse predomi-
nated to corroborate the victim’s allegations.’’
Moreover, the court found that Cruz’ testimony
‘‘directly refutes testimony by the victim which por-
trayed the petitioner as abusive to women even in the
eyes of the petitioner’s closest friend.’’ Even if the jury
fully credited Cruz’ testimony in this regard, his testi-
mony would have impeached the victim’s testimony of
events only with respect to the incident of uncharged
misconduct. His testimony would not tend to refute the
testimony of the victim’s mother concerning the June,
2003 sexual assault, the testimony of Hlawitschka and
the dean of the victim’s college concerning the May,
2004 assault, the testimony of Murphree concerning the
June, 2004 sexual assault, and the e-mails relating to
all of the foregoing incidents. Moreover, Flores, Addo,
and Smith testified that the petitioner displayed aggres-
sive behavior toward them, just as the victim had
described that the petitioner was aggressive toward
her.9
In light of the foregoing, we conclude that the intro-
duction of Cruz’ testimony to the body of evidence
presented at trial would have ‘‘had an isolated, trivial
effect.’’ (Internal quotation marks omitted.) Gaines v.
Commissioner of Correction, supra, 306 Conn. 689. As
stated previously, the impact Cruz’ ‘‘ostensibly credi-
ble’’ testimony likely would have had on the jury’s ver-
dict in the underlying criminal trial ‘‘must be considered
in light of all of the evidence that was before the jury.’’
(Emphasis added.) Griffin v. Commissioner of Correc-
tion, supra, 98 Conn. App. 367. In the present case,
the habeas court’s limited view of the trial evidence
inhibited its application of Strickland’s prejudice prong.
The state’s body of evidence was not, as argued by the
petitioner and set forth by the habeas court, directly
predicated on the victim’s credibility.
Although we recognize that Cruz’ testimony could
have affected the trial to some degree, Strickland
expressly requires the petitioner to demonstrate that,
absent counsel’s error, the result of the trial would have
been different. Cruz’ testimony related to an incident
of uncharged misconduct that played a relatively minor
role in the petitioner’s criminal trial.10 Notwithstanding
the habeas court’s determination that Cruz was ‘‘osten-
sibly credible,’’ he undoubtedly would have been sub-
ject to impeachment. Even if fully credited by the jury,
however, his testimony would not undermine the inde-
pendent testimony and evidence presented by the state
to support the charges for which the petitioner was
convicted. In sum, if Cruz’ testimony was presented at
trial, it was not reasonably probable that the outcome
would have been different. See Harrington v. Richter,
U.S. , 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)
(‘‘the likelihood of a different result must be substantial
not just conceivable’’ [emphasis added]). Accordingly,
we conclude that the petitioner failed to establish that
he was prejudiced by Pickering’s failure to present Cruz
as a witness at the criminal trial.
The judgment is reversed and the case is remanded
with direction to render judgment denying the amended
petition for a writ of habeas corpus.
In this opinion the other judges concurred.
1
‘‘The jury returned a not guilty verdict with regard to a count of kidnap-
ping in the second degree as well as two additional counts of sexual assault
in the first degree. The jury returned a guilty verdict with regard to an
additional count of assault in the third degree, but the [trial] court later
dismissed this count prior to sentencing. The court imposed a total effective
term of incarceration of twenty-six years, execution suspended after four-
teen years, followed by a fifteen year term of probation.’’ State v. Crespo,
114 Conn. App. 346, 348 n.1, 969 A.2d 231 (2009), aff’d, 303 Conn. 589, 35
A.3d 243 (2012).
2
During trial, the trial court granted the petitioner’s motion for notice of
uncharged misconduct. The petitioner, however, did not object to evidence
of the February, 2004 incident or any other specific instance of
uncharged misconduct.
3
During the habeas trial, the petitioner testified that he met with Pickering
the Saturday before the start of the criminal trial. During this meeting,
both Pickering and the petitioner reviewed police reports obtained through
discovery. One of the police reports referenced the February, 2004 incident
between the petitioner and the victim that occurred while both were staying
with Cruz. The petitioner explained the nature of the incident to Pickering,
informed him that Cruz could corroborate his version of events, and asked
him to call Cruz as a witness. Pickering, however, did not present Cruz as
a witness during the criminal trial.
4
The habeas court later specified that it used ‘‘reasonable likelihood’’ and
‘‘reasonable probability’’ as synonyms.
5
The habeas court granted the respondent’s petition for certification to
appeal from its judgment.
6
The respondent, relying on Bryant v. Commissioner of Correction,
supra, 290 Conn. 510, and Sanchez v. Commissioner of Correction, 138
Conn. App. 594, 600, 53 A.3d 1031 (2012), cert. granted, 307 Conn. 951, 58
A.3d 976 (2013), contends that the court improperly ‘‘discounted’’ Cruz’
‘‘obvious bias’’ as the petitioner’s lifelong friend in applying Strickland’s
prejudice prong. In light of our conclusion that the court improperly failed
to consider the totality of the evidence presented at trial for purposes of
assessing prejudice under Strickland, we need not address this argument.
7
The trial court instructed the jury that evidence of uncharged misconduct
‘‘was not admitted to prove the bad character of the [petitioner] or the
[petitioner’s] tendency to commit criminal acts. In other words, you may
not consider such evidence as establishing a predisposition on the part of
the [petitioner] to commit any of the crimes charged or to demonstrate a
criminal propensity. You may consider this evidence, if you believe it, only
if you find that it is probative of the relationship between the [victim] and
the [petitioner]. On the other hand, if you do not believe this evidence or
even if you do, if you find that it is not probative of their relationship, then
you may not consider this evidence for any purpose.’’
8
Specifically, the petitioner threatened to ‘‘tear off’’ Smith’s head and
‘‘shit down’’ his neck.
9
The petitioner nevertheless argues that Cruz’ testimony would have
impeached the victim’s credibility entirely and, by extension, would have
called into question the testimony of the state’s witnesses insofar as their
testimony was based solely on the victim’s reports to them. This argument
must fail as the trial court instructed the jury that the incident of uncharged
misconduct, as related by the victim in her testimony, was relevant only to
‘‘the relationship between the [victim] and the [petitioner].’’ See Strickland
v. Washington, supra, 466 U.S. 695 (petitioner not entitled to ‘‘luck’’ that
jury would not have followed instructions). If it were the case that Cruz’
testimony, if offered at trial, likely would have refuted the victim’s testimony
with respect to the uncharged misconduct, we cannot say it would have
also functioned to refute either her testimony concerning the charges against
the petitioner or the entirety of the state’s evidence. ‘‘[N]ot every error that
conceivably could have influenced the outcome undermines the reliability of
the result of the proceeding.’’ (Emphasis added.) Strickland v. Washington,
supra, 466 U.S. 693.
10
Indeed, our review of the record reveals that the February, 2004 incident
of uncharged misconduct was only referred to during the victim’s testimony
and briefly during the state’s closing argument.