Rodriguez v. Commissioner of Correction , 167 Conn. App. 233 ( 2016 )

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JOSUE RODRIGUEZ v. COMMISSIONER
OF CORRECTION
(AC 35929)
Beach, Sheldon and Gruendel, Js.
Argued May 9—officially released July 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
David V. DeRosa, assigned counsel, for the appel-
lant (petitioner).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Kelly A. Masi, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
GRUENDEL, J. The petitioner, Josue Rodriguez,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. He
claims that the court improperly concluded that he had
not demonstrated that his trial counsel rendered inef-
fective assistance with respect to (1) his Alford1 plea
and (2) his counsel’s alleged conflict of interest. We
affirm the judgment of the habeas court.
The relevant facts are as follows. ‘‘In 2005, the [peti-
tioner] was convicted of sale of narcotics in violation of
General Statutes § 21a-277 (a), and sentenced to twelve
years incarceration, execution suspended, with five
years probation. As a condition of the [petitioner’s]
probation, he was not to violate the criminal laws of
the state. In 2007, the [petitioner] was convicted of risk
of injury to a child in violation of General Statutes § 53-
21 (a) (1) and burglary in the third degree in violation
of General Statutes § 53a-103. He was sentenced to a
total effective term of ten years incarceration, execu-
tion suspended, and five years probation. The [peti-
tioner] also was found in violation of his probation
imposed in 2005, as a result of those offenses. His proba-
tion was not revoked, but, rather, it was to run concur-
rently with the probationary term imposed for the
conviction. The conditions of his probation included,
inter alia, no contact with the victim, Damaris Sanchez,
and a ‘zero tolerance’ provision for any violations.
‘‘In the early morning hours on November 14, 2008,
Sanchez, the [petitioner’s] former wife with whom he
had an ‘on and off’ relationship, was asleep in her home
when she awoke to the smell of gasoline fumes. When
she looked outside the house, she saw a shadowy
human figure walk near the front of her house. When
she saw the person’s face, she recognized the person
as the [petitioner]. She saw the [petitioner] light a lighter
near the hood of her car, and she yelled to him, ‘what
are you doing to my car.’ The [petitioner] ran away.
Once outside, Sanchez noticed that the [petitioner] had
vandalized her house and car with obscene words
and phrases.
‘‘On April 13, 2009, the court found that the [peti-
tioner] violated his probation by committing criminal
mischief and violating the no contact order. The court
revoked his probation and sentenced him to serve the
entire twelve years of his original 2005 sentence.’’ State
v. Rodriguez, 130 Conn. App. 645, 646–47, 23 A.3d 826(2011), aff’d, 320 Conn. 694, 132 A.3d 731 (2016). That
same day, the petitioner ‘‘appeared before another
judge on the underlying criminal charges and pleaded
guilty, pursuant to the Alford doctrine, to attempt to
commit arson in the second degree in violation of Gen-
eral Statutes §§ 53a-112 and 53a-49. The [petitioner] was
thereafter sentenced to eight years incarceration, con-
current to the twelve year sentence imposed for vio-
lating probation.’’ (Footnote omitted.) Id., 648–49.
‘‘The [petitioner] filed a timely appeal from the judg-
ment of the trial court finding him in violation of his
2005 probation, contending, among other things, that
there was insufficient evidence for the court to find by
a preponderance of the evidence that he had violated
the terms of his probation. . . . The [petitioner], how-
ever, did not take a timely appeal challenging his guilty
plea to the charge of attempt to commit arson.’’ (Cita-
tion omitted.) State v. Rodriguez, 320 Conn. 694, 697,
132 A.3d 731 (2016). On appeal, this court dismissed as
moot the petitioner’s challenge to the finding that he
violated the terms of his probation. State v. Rodriguez,
supra, 130 Conn. App. 649. Our Supreme Court there-
after affirmed the propriety of that determination. State
v. Rodriguez, supra, 320 Conn. 706.
Apart from his violation of probation appeal, the peti-
tioner, on July 30, 2009, filed a petition for a writ of
habeas corpus, claiming that Attorney William Gerace,
who represented him at both of the April 13, 2009 hear-
ings, had rendered ineffective assistance of counsel. In
the first count of his amended petition, the petitioner
alleged that Gerace had simultaneously represented
him and Sanchez in 2005, thereby giving rise to a conflict
of interest. The second count of that petition alleged,
inter alia, that Gerace ‘‘failed to advise the petitioner
that a plea [to attempt to commit arson in the second
degree] would invalidate any appeal’’ of his violation
of probation conviction.
Following a trial, the habeas court denied his petition,
finding that the petitioner did not satisfy his burden
with respect to the claims contained therein. The court
subsequently granted the petition for certification to
appeal, and this appeal followed.
Before considering the specific claims advanced by
the petitioner in this appeal, we first note the standard
of review that governs allegations of ineffective assis-
tance of counsel. ‘‘The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . The application of the habeas court’s factual
findings to the pertinent legal standard, however, pre-
sents a mixed question of law and fact, which is subject
to plenary review.’’ (Internal quotation marks omitted.)
Mozell v. Commissioner of Correction, 291 Conn. 62,
76–77, 967 A.2d 41 (2009).
‘‘A criminal defendant’s right to the effective assis-
tance of counsel extends through the first appeal of
right and is guaranteed by the sixth and fourteenth
amendments to the United States constitution and by
article first, § 8, of the Connecticut constitution.’’ Small
v. Commissioner of Correction, 286 Conn. 707, 712, 946
A.2d 1203, cert. denied sub nom. Small v. Lantz, 555
U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). ‘‘In
Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme
Court established that for a petitioner to prevail on a
claim of ineffective assistance of counsel, he must show
that counsel’s assistance was so defective as to require
reversal of [the] conviction . . . . That requires the
petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficient performance preju-
diced the defense [by establishing a reasonable proba-
bility that, but for the counsel’s mistakes, the result of
the proceeding would have been different]. . . . Fur-
thermore, [i]n a habeas corpus proceeding, the petition-
er’s burden . . . is not met by speculation . . . but by
demonstrable realities.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Farnum v.
Commissioner of Correction, 118 Conn. App. 670, 675,
984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989
A.2d 119 (2010). ‘‘[A] successful petitioner must satisfy
both prongs . . . [and the] failure to satisfy either . . .
is fatal to a habeas petition.’’ (Internal quotation marks
omitted.) Saucier v. Commissioner of Correction, 139
Conn. App. 644, 650, 57 A.3d 399 (2012), cert. denied,
308 Conn. 907, 61 A.3d 530 (2013).
I
The petitioner first claims that his trial counsel ren-
dered ineffective assistance in failing to advise him that
his Alford plea to attempt to commit arson in the second
degree would foreclose ‘‘any viable appeal’’ of his viola-
tion of probation conviction. In rejecting that claim,
the court concluded that the petitioner had failed to
demonstrate any prejudice resulting therefrom. We
agree.
As our Supreme Court has explained, ‘‘under the test
in Hill [v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985)], in which the United States Supreme
Court modified the prejudice prong of [Strickland] for
claims of ineffective assistance when the conviction
resulted from a guilty plea, the evidence must demon-
strate that there is a reasonable probability that, but
for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to
trial.’’ (Internal quotation marks omitted.) Crawford v.
Commissioner of Correction, 285 Conn. 585, 598, 940
A.2d 789 (2008). That standard governs the petition-
er’s claim.
The record reflects that, pursuant to his Alford plea,
the petitioner received a sentence of eight years incar-
ceration on the attempted arson charge, which sentence
ran concurrently with his twelve year sentence for viola-
tion of probation. In its memorandum of decision, the
habeas court noted that, at the time that plea was
entered, the trial court ‘‘canvassed the Alford plea and
twice specifically asked the petitioner if he was pleading
guilty because of the favorable plea agreement. Both
times the petitioner acknowledged that the favorable
disposition was his motivation for [entering] the Alford
plea.’’2 See State v. Reid, 277 Conn. 764, 784, 894 A.2d
963 (2006) (court may rely on responses made during
plea canvass); Toles v. Commissioner of Correction,
113 Conn. App. 717, 727, 967 A.2d 576 (in evaluating
ineffective assistance of counsel claim, habeas court
entitled to rely on petitioner’s responses to trial court
during plea canvass), cert. denied, 293 Conn. 906, 978
A.2d 1114 (2009).
At the habeas trial, the petitioner presented only two
witnesses—Sanchez and himself. Sanchez offered no
testimony with respect to this claim. In his testimony,
the petitioner acknowledged that ‘‘what convinced
[him] to take the plea’’ was the risk of being sentenced
to additional years of incarceration.3 Although the peti-
tioner also alleged that he informed the trial court at
the time of sentencing that he wanted a trial, that testi-
mony is belied by the transcript of the April 13, 2009
plea proceeding, which was admitted into evidence at
his habeas trial. That transcript contains no indication
by the petitioner that he wished to proceed to trial on
the attempted arson charge.4 In addition, the petitioner
never testified at his habeas trial that, had he been
advised that his Alford plea would preclude an appeal
of his violation of probation conviction, he would not
have pleaded guilty and would have insisted on going
to trial.
In view of the evidence presented at the habeas trial,
the court concluded that it ‘‘remains unpersuaded that
the petitioner would have refused to plead guilty and
reject a completely concurrent sentence in the arson
case even if he was aware of the loss of opportunity
to challenge [the court’s] finding of his violation of
probation. . . . [T]he court finds that the petitioner
would have taken advantage of the very favorable sen-
tence recommendation of an entirely concurrent eight
year prison sentence even if . . . Gerace had expended
more time discussing the offer with [him]. The bottom
line is that the petitioner would have concluded that
the concurrent sentence recommendation was too
attractive to pass up.’’ On the record before us, we
cannot quarrel with that determination. Accordingly,
the petitioner’s claim fails.
II
The petitioner also claims that his trial counsel ren-
dered ineffective assistance attributable to a conflict
of interest on his part. We do not agree.
‘‘It is axiomatic that the right to counsel is the right
to the effective assistance of counsel. . . . As an
adjunct to this right, a criminal defendant is entitled to
be represented by an attorney free from conflicts of
interest.’’ (Citation omitted; internal quotation marks
omitted.) Rodriguez v. Commissioner of Correction,
312 Conn. 345, 352, 92 A.3d 944 (2014). The legal stan-
dard applicable to such claims hinges on whether an
appellant is alleging an actual conflict of interest on
the part of counsel.
‘‘Where the criminal defendant presents a claim of
actual ineffectiveness . . . that is, when he challenges
his lawyer’s performance in the trial court, he must
show that: (1) his counsel’s performance was deficient
in the sense that the counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed by the Sixth Amendment; and (2) the deficient
performance prejudiced the defense . . . in the sense
that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different. . . . . In such a case, there-
fore, the defendant must establish (1) deficient perfor-
mance, and (2) actual prejudice.’’ (Citations omitted;
internal quotation marks omitted.) Phillips v. Warden,
220 Conn. 112, 132, 595 A.2d 1356 (1991).
By contrast, ‘‘[w]here . . . the defendant claims that
his counsel was burdened by an actual conflict of inter-
est . . . the defendant need not establish actual preju-
dice. . . . Where there is an actual conflict of interest,
prejudice is presumed because counsel [has] breach[ed]
the duty of loyalty, perhaps the most basic of counsel’s
duties. Moreover, it is difficult to measure the precise
effect on the defense of representation corrupted by
conflicting interests. . . . In a case of a claimed con-
flict of interest, therefore, in order to establish a viola-
tion of the sixth amendment the defendant has a two-
pronged task. He must establish (1) that counsel
actively represented conflicting interests and (2) that an
actual conflict of interest adversely affected his lawyer’s
performance.’’ (Citations omitted; internal quotation
marks omitted.) Id., 132–33.
The following additional facts are relevant to the
petitioner’s conflict of interest claim. The petitioner is
a convicted felon with a history of domestic violence.
At the time that he entered his Alford plea, the petitioner
had known Gerace for almost twenty years. The peti-
tioner was approximately sixteen years old when he
first retained Gerace as his criminal defense counsel;
he was thirty-four years old at the time of his Alford
plea to attempt to commit arson in the second degree.
In 2005, Sanchez was arrested following a domestic
altercation involving ‘‘one of [the petitioner’s] mis-
tresses.’’ At that time, Sanchez was married to the peti-
tioner, who was represented by Gerace in a pending
criminal matter. Sanchez testified that she had ‘‘found
out about’’ Gerace from the petitioner and that she
never paid Gerace any money. She never met with Ger-
ace alone and never provided him any personal informa-
tion, such as medical records. Sanchez explained that
she never met with Gerace outside of a courthouse, but
rather had met with him ‘‘inside court when he was
dealing with my case only.’’ She also ‘‘never spoke’’
with Gerace about the petitioner’s cases. Sanchez testi-
fied that her domestic case ultimately was nolled.
In 2006, the petitioner was arrested following a
domestic altercation involving Sanchez and her son.
Gerace, who represented the petitioner in that criminal
matter, did not ask Sanchez to waive any attorney-client
privilege. At his habeas trial, the petitioner conceded
that he did not raise any conflict of interest claim at that
time. The petitioner further acknowledged that Gerace
‘‘got [him] a pretty good deal on that case, all suspended
time . . . .’’
In 2008, the petitioner was arrested in the arson case
involving Sanchez that gave rise to his Alford plea. Ger-
ace once again represented the petitioner and did not
ask Sanchez to waive any attorney-client privilege at
that time. Sanchez subsequently testified at the petition-
er’s violation of probation hearing. As the habeas court
found in its memorandum of decision, ‘‘Sanchez testi-
fied reluctantly for the state. She acknowledged on
direct examination a desire to help the petitioner in
that legal predicament. She undercut her own earlier
identification of the petitioner as the arsonist to the
police by attributing that identification to ‘bad nerves,’
poor eyesight, and a weak memory. Her uncertainty on
the stand at the [violation of probation] hearing reached
such a level that the prosecution was able to admit her
previous statement to the police under State v. Whelan,
200 Conn. 743, 753–54, 513 A.2d 86, cert. denied, 479
U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).5 On
cross examination . . . Gerace capably elicited that
Sanchez only ‘imagined’ the odor of gasoline inside
her home on the night of the incident, that she was
‘delusional’ that night, that her vision was bad, and
that her powers of observation were clouded by the
ingestion of Vicodin for back pain. . . . Gerace also
proffered evidence through [Sanchez] that her brother
and her boyfriend also were present during the activities
in question, and available to testify, even though the
prosecutor failed to call them as witnesses for the state.
This latter testimony by Sanchez was inconsistent with
her police statement.’’ As a result, the trial court in that
proceeding ‘‘characterized . . . Sanchez’ testimony as
evasive, noncommittal, and contradictory to her previ-
ous statement to the police. In arriving at a decision
that the petitioner committed the crimes in violation
of his probation, [the trial court] relied on the Whelan
statement rather than . . . Sanchez’ testimony.’’ Those
findings all are supported by the record before us.
On appeal, the petitioner maintains that Gerace was
burdened by an actual conflict of interest stemming
from his representation of Sanchez in 2005. He claims
that said representation adversely affected Gerace’s
performance at the violation of probation hearing. Spe-
cifically, he alleges that Gerace refrained from cross-
examining Sanchez about certain mental health issues
due to the existence of an attorney-client privilege
between them.
The fallacy in that claim is the presumption that San-
chez communicated privileged information to Gerace.
The petitioner did not call Gerace as a witness at his
habeas trial. Moreover, Sanchez testified at the habeas
trial that she had never met with Gerace alone and
had never disclosed any personal information to him,
including mental health matters. Indeed, during closing
arguments before the habeas court, the petitioner’s
counsel acknowledged that ‘‘we don’t know what com-
munications . . . Gerace had with . . . Sanchez
. . . .’’ The petitioner further did not introduce into
evidence as exhibits any documentary materials at his
habeas trial. Put simply, the record of that trial contains
no evidence to support a finding that Sanchez communi-
cated privileged information to Gerace regarding her
mental health. The court found—and we agree—that
the petitioner asked it to ‘‘assume that . . . Sanchez
revealed to . . . Gerace confidential details or docu-
ments concerning her mental state which would have
been useful to his defense . . . .’’ (Emphasis in origi-
nal.) Yet the court specifically found that ‘‘[n]o credible
evidence was adduced at the habeas hearing to per-
suade the court that [information about Sanchez’ mental
health] was conveyed to Gerace by . . . Sanchez or
withheld from use by him in the petitioner’s defense.’’
As this court has observed, ‘‘[a]n actual conflict of
interest is more than a theoretical conflict. The United
States Supreme Court has cautioned that the possibility
of conflict is insufficient to impugn a criminal convic-
tion. . . . A conflict is merely a potential conflict of
interest if the interests of the defendant may place the
attorney under inconsistent duties at some time in the
future. . . . To demonstrate an actual conflict of inter-
est, the petitioner must be able to point to specific
instances in the record which suggest impairment or
compromise of his interests for the benefit of another
party. . . . A mere theoretical division of loyalties is
not enough. . . . If a petitioner fails to meet that stan-
dard, for example, where only a potential conflict of
interest has been established, prejudice will not be pre-
sumed, and the familiar Strickland prongs will apply.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Anderson v. Commissioner of
Correction, 127 Conn. App. 538, 550, 15 A.3d 658 (2011),
aff’d, 308 Conn. 456, 64 A.3d 325 (2013). Because the
record before us substantiates nothing more than a
theoretical conflict, the petitioner cannot establish an
actual conflict on the part of Gerace.
We therefore must consider the adequacy of the assis-
tance rendered by Gerace under the familiar parameters
of Strickland. Id. We conclude that the petitioner’s con-
flict of interest claim cannot satisfy either of its prongs.
With respect to Gerace’s performance as the petition-
er’s counsel, we note that the petitioner did not call
Gerace as a witness at his habeas trial. He further did
not offer any expert testimony to opine on the nature
and quality of Gerace’s performance. In addition, the
April 7, 2009 transcript of the petitioner’s violation of
probation proceeding substantiates the habeas court’s
findings that Gerace (1) thoroughly and effectively
cross-examined Sanchez and (2) produced the testi-
mony of an alibi witness who refuted the contents of
Sanchez’ statement to the police.
‘‘Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuc-
cessful, to conclude that a particular act or omission
of counsel was unreasonable. . . . A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Bryant v. Commissioner of Cor-
rection, 290 Conn. 502, 512–13, 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).
Significantly, Sanchez offered testimony at the viola-
tion of probation hearing that was favorable to the
petitioner. In that testimony, Sanchez recanted her iden-
tification of the petitioner as the perpetrator of the
offenses committed outside her home in the early morn-
ing hours of November 14, 2008.6 On cross-examination,
Gerace also elicited testimony from Sanchez indicating
that, at the time of that incident, she was under the
influence of Vicodin, which causes confusion for her.
Given that favorable testimony and mindful of the pre-
sumption that counsel’s conduct falls within the wide
range of reasonable professional assistance, we cannot
say that Gerace’s decision not to impeach Sanchez’
testimony by raising the issue of her mental health was
anything but sound trial strategy. The petitioner, there-
fore, cannot demonstrate deficient performance on the
part of Gerace.
The record further undermines any claim of prejudice
resulting from Gerace’s alleged failure to impeach San-
chez’ testimony by raising the issue of her mental health.
In revoking the petitioner’s probation, the trial court
did not credit Sanchez’ testimony, but rather relied on
her Whelan statement to the police made on the date
of the incident. Moreover, the record before us lacks
any credible testimonial or documentary evidence on
which the trier of fact could conclude that, had Gerace
conducted additional investigation or cross-examina-
tion into Sanchez’ alleged mental health issues, there
is a reasonable probability that the result of the proceed-
ing would have been different. We therefore conclude
that the habeas court properly denied the petition for
a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d
248 (2008).
2
The transcript of the April 13, 2009 plea proceeding substantiates the
court’s findings.
3
Attempted arson in the second degree is a class B felony. General Statutes
§§ 53a-51 and 53a-112 (b). It is punishable by a term of incarceration up to
twenty years. General Statutes § 53a-35a (6).
4
Early in that proceeding, the petitioner inquired as to the nature of an
Alford plea. The following colloquy transpired:
‘‘[The Petitioner]: What’s an Alford?
‘‘[The Petitioner’s Counsel]: Saying that you didn’t do it but you don’t
want to have a trial because you might get more time.
‘‘The Court: Right.
‘‘[The Petitioner]: Yeah.
‘‘[The Petitioner’s Counsel]: That’s what he wants.
‘‘The Court: Alright, put him to plea.’’
5
In Whelan, our Supreme Court held that a prior written inconsistent
statement of a nonparty witness is admissible for substantive purposes if
the statement is signed by the declarant, who has personal knowledge of
the facts stated, and the declarant testifies at trial and is available for cross-
examination. State v. Whelan, supra, 200 Conn. 753.
6
Sanchez testified in relevant part: ‘‘I made an identification [to the police]
but . . . I was not sure about it. . . . When I go through traumatic things
I really don’t—it’s hard for me to be focused at that point and remember
certain things.’’ When confronted with the statement she provided to the
police, the following colloquy transpired:
‘‘[The Prosecutor]: Okay. I’m going to show you what’s been marked as
State’s Exhibit 8 for identification purposes and . . . I’m going to ask you
to just take a look at that. Okay? Is that the statement that you gave to the
police that night?
‘‘[Sanchez]: It’s my signature so maybe. I don’t remember detail by detail
what I told them that night.
‘‘[The Prosecutor]: Okay. Do you remember telling the police that night
I recognized [the petitioner] and I had a clear view of his face. [He] was
dressed all in black.
‘‘[Sanchez]: No, I don’t remember telling them that.
‘‘[The Prosecutor]: Do you remember telling them, I broke up with [the
petitioner] recently and he has been very angry with me?
‘‘[Sanchez]: I don’t recall that neither, sir.
‘‘[The Prosecutor]: Do you remember telling the police that you were
afraid of [the petitioner], that he would hurt you?
‘‘[Sanchez]: I don’t recall that neither, sir.
‘‘[The Prosecutor]: And do you remember telling the police that—and I’m
reading from your statement—that you saw the face and recognized it as
my children’s father. . . .
‘‘[Sanchez]: I remember telling the police officer that it looked like my
kids’ father, but I was always never for certain if it was or if it was not.’’