David P. v. Commissioner of Correction ( 2016 )

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DAVID P.* v. COMMISSIONER OF CORRECTION
(AC 36936)
Beach, Alvord and Norcott, Js.
Argued January 12—officially released August 9, 2016
(Appeal from Superior Court, judicial district of
Tolland, Bright, J.)
Heather Clark, assigned counsel, for the appellant
(petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and David Clifton, assistant state’s
attorney, for the appellee (respondent).
Opinion
NORCOTT, J. The petitioner, David P., appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus.1 On appeal, the petitioner
claims that the habeas court erred by concluding that
habeas counsel for the petitioner in his first habeas trial
provided effective assistance. Specifically, the peti-
tioner claimed that his first habeas counsel was ineffec-
tive because he failed to investigate and raise claims
that criminal trial counsel provided ineffective assis-
tance when he (1) failed to offer witnesses who would
have supported a defense theory that the investigation
violated best practices, consistent with the interview-
ers’ exerting social pressure and influence on the vic-
tims; and (2) mischaracterized testimony of the
underlying allegations and elicited additional allega-
tions. The petitioner further claims that the habeas
court erred by overruling the petitioner’s objection,
raised during the habeas trial, to testimony regarding
statements made by one of the child victims to Alphonse
Gambardella, a worker with the Department of Children
and Families (department), because the statements
were hearsay and not within any exception. We disagree
that habeas counsel in the petitioner’s first habeas trial
rendered ineffective assistance. Although we agree with
the petitioner that Gambardella’s testimony was hear-
say not within any exception, we conclude that its
admission was harmless error. Accordingly, we affirm
the judgment.
This appeal is the most recent in a series of challenges
to the petitioner’s conviction, in 2000, of a total of five
counts of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), one count of sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (1), and five counts of risk of injury
to a child in violation of General Statutes § 53-21. These
convictions arose from the petitioner’s prolonged sex-
ual abuse of three of his daughters, herein referred to
as A, B, and C.2 See State v. David P., 70 Conn. App.
462, 464–66, 800 A.2d 541, cert. denied, 262 Conn. 907,
810 A.2d 275 (2002). The petitioner ultimately received
two trials, the first of which ended in a mistrial on
September 30, 1998, and the second of which resulted in
these convictions on March 30, 2000. After the petitioner
was convicted, on May 19, 2000, he was sentenced to
ninety years imprisonment.
From this judgment, the petitioner took an appeal,
in which he raised several challenges to his convictions
not relevant to those before us now. See id., 464. This
court affirmed the judgment. Id. In 2002, the petitioner
filed his first petition seeking a writ of habeas corpus.
In his amended petition and at trial in 2004, he alleged
that trial counsel was ineffective in that he failed to
obtain and offer evidence—specifically, time sheets
from his own employers and his former wife’s
employer—that would have helped to establish an alibi
defense. He also alleged that his appellate counsel was
ineffective for failing to brief properly and to raise cer-
tain claims that were unrelated to the claims in the
present appeal. After trial, the court dismissed the
habeas petition. The petitioner appealed from this dis-
missal, his appellate counsel withdrew, and the appeal
was dismissed for lack of diligence.
On June 14, 2013, the petitioner filed the operative
amended habeas petition in the present case. In his
petition, the petitioner raised, inter alia, the two claims
of ineffective assistance of counsel that he now pursues
on appeal. Following a trial on November 25 through
27, 2013, the court, Bright, J., denied the petition for
a writ of habeas corpus on May 19, 2014, and granted
certification to appeal on May 27, 2014. Further proce-
dural history and facts will be set forth as necessary.
I
The petitioner claims that his habeas counsel in his
first habeas trial, Joseph Visone, rendered ineffective
assistance. Specifically, the petitioner claims that Attor-
ney Visone was ineffective because he failed to investi-
gate and raise a claim that trial counsel, William
Palmieri, rendered ineffective assistance when Palmieri
failed to present, in the petitioner’s second trial, a
defense theory that the investigation violated best prac-
tices because the investigators suggested the victims’
answers to questions. The petitioner further challenged
as clearly erroneous the habeas court’s findings that
(1) trial counsel had a reasonable expectation that he
would be able to present evidence important to his
theory; (2) Dr. David Mantell, a forensic psychologist
who testified as an expert for the petitioner in this
matter, had only minor issues with respect to the inter-
views of two of the victims; and (3) there was a risk
that if Palmieri had raised the alternative defense,
Gambardella and certain other constancy witnesses at
the second trial could have given damaging testimony.
The respondent, the Commissioner of Correction,
counters that these findings were supported by the
record. The respondent further argues that the habeas
court properly concluded that Palmieri was not ineffec-
tive for deciding to pursue a peer pressure defense
instead of a suggestive investigation defense, and that
Attorney Visone, therefore, was not ineffective for fail-
ing to raise the claim of ineffective assistance of trial
counsel in the first habeas action. We agree with the
respondent.
The following additional facts and procedural history
are relevant to our discussion of this claim. The habeas
court found that Palmieri’s theory of defense was that
(1) the allegations of A, B and C were false and arose
from social pressure exerted by A’s friends, K and H,
who were angry with the petitioner because he would
not allow A to see them; (2) B fabricated her allegations
in an effort to corroborate A’s allegations; and (3) the
allegations of C were simply not credible. Palmieri fur-
ther argued at trial that there was little physical evi-
dence of abuse of A, and none of B or C. At the first
criminal trial, Palmieri supported his theory by arguing
that the evidence showed that K and H falsely reported
the abuse to the department six months before A’s initial
disclosure, and that K reported the abuse to a social
worker at A’s school, attended the meeting with the
social worker, and did most of the talking during that
meeting, with A merely agreeing with K’s descriptions
of the alleged sexual abuse.
The habeas court further found that the court, Licari,
J., declared a mistrial on all counts, except one, in the
petitioner’s first criminal trial on September 30, 1998,
because the jury deadlocked on all but the one count.
The jury did, however, acquit the petitioner of one of the
counts of sexual assault in the first degree involving A.
The habeas court found that Palmieri used the same
theory of defense in the second criminal trial, in March,
2000, as in the first. In the second criminal trial, how-
ever, defense counsel encountered setbacks that did
not arise in the first trial: for example, the state objected
to evidence that was admitted in the first trial regarding
the motive of H and K for filing a report with the depart-
ment. The court, Fracasse, J., sustained this objection,
ruling that the evidence was irrelevant. Further hinder-
ing the defense’s theory, H and K denied any recollec-
tion of whether A had reported anything to them, and
of whether they discussed anything with the depart-
ment. In addition to these challenges, in the second
criminal trial, the state presented two constancy of
accusation witnesses, L and D, neither of whom testified
at the first criminal trial. L, A’s classmate, testified that A
reported the petitioner’s sexual abuse to her six months
before H and K made their initial report to the depart-
ment, and D, L’s mother, testified that L had relayed
this information to her around the time A told L.
In the habeas trial that is the subject of this appeal,
counsel for the petitioner presented evidence of a differ-
ent theory of defense, a theory that the petitioner
claimed was unreasonably not pursued by defense
counsel in the petitioner’s second criminal trial. This
alternative theory was that, rather than being fabrica-
tions produced under pressure from K and H, the allega-
tions of the three sisters were suggested to them by
the manner in which the investigation was conducted.
In particular, the petitioner took issue with the inter-
views in which the sisters made their disclosures. He
claimed that the interviews were suggestive because
they were lengthy, repeated, and attended by numerous
authority figures, and that Palmieri performed defi-
ciently by not calling as witnesses those persons who
were present for the interviews but had not been called
by the state, by not more thoroughly examining those
witnesses involved in these interviews who did testify,
and by failing to obtain certain medical, psychological,
and educational records that would have substantiated
how the interviews took place.
The habeas court’s factual findings with respect to
the petitioner’s claim regarding this alternative theory
of defense centered on the testimony and other evi-
dence presented by and through several individuals who
were involved in the interviews of the three sisters,
and also upon the testimony of the petitioner’s expert
witness, Mantell, a licensed psychologist specializing,
inter alia, in child abuse and neglect and forensic psy-
chology.
The habeas court found, from the testimony of Eliza-
beth DeLancy, a school psychologist, and A, that
DeLancy first learned of the abuse from A’s friend, K.
On May 12, 1997, K came to DeLancy’s office with A,
whereupon, according to DeLancy, K did most of the
talking. K would provide details of the abuse, DeLancy
would ask A if this was true, and A would simply
respond ‘‘yes.’’ DeLancy testified that A did describe
on her own when and where the last instance of abuse
had occurred. By contrast, A testified that K did all of
the talking in the May 12 meeting with DeLancy, and
that A initially denied the abuse. The habeas court found
that DeLancy’s notarized statement of May 15, which
memorialized these events, corroborated DeLancy’s
testimony about them.
The habeas court also summarized DeLancy’s May
13, 1997 meeting with A, in which A initially denied any
abuse, but then, in response to DeLancy’s insistence
that she tell the truth, disclosed that her father, the
petitioner, was having sex with her. DeLancy testified
that K was present for this interview. DeLancy also
testified that at the end of the interview, she told A
that she would need to disclose to the police and the
department, and that doing so would stop the abuse.
DeLancy’s aforementioned notarized statement, how-
ever, differed from her testimony about the May 13
meeting in that DeLancy recorded that she asked A
about specific sexual acts rather than asking A to
describe the acts that the petitioner had done.
According to the statement, A also wrote down on a
piece of paper, ‘‘My father is having sex with me.’’ The
statement also indicates that DeLancy brought K into
the room for ‘‘emotional support’’ for A, although K
was instructed not to answer any questions. Finally,
DeLancy reported in her statement that she told A that
she would have to be brave when meeting with the
police and the department, that she was doing the right
thing, and that she was a ‘‘good kid.’’
Again on May 13, 1997, A was interviewed, this time
by DeLancy, Gambardella, the principal of A’s school,
and Anthony Natale, a detective with the Hamden Police
Department, together, for ninety minutes. Natale testi-
fied that he told A at the beginning of the interview
that she had not done anything wrong and did not need
to be afraid to speak freely. He also testified both at
the petitioner’s criminal trial and in the habeas trial
that A had disclosed during the interview that the abuse
had been occurring for about one and one-half years.
Gambardella testified in the habeas trial that after
Natale left, A asked to speak to him alone and told him,
‘‘I know what sex is. My dad is having sex with me.’’
The habeas court found that Gambardella then inter-
viewed each of A’s three sisters3 individually, with
DeLancy present, and both B and C each testified at
the petitioner’s criminal trials that they had denied to
Gambardella any abuse by the petitioner.
Again, on May 13, for one hour, Donald Remillard,
another detective with the Hamden Police Department,
interviewed A. On May 21, 1997, Janet Murphy, a nurse
practitioner, interviewed A alone at the Yale-New Haven
Hospital Child Sexual Abuse Clinic (clinic) about the
allegations as part of a medical examination for physical
evidence of sexual abuse. On June 10, 1997, Florence
Freudenthal, who worked at the clinic, interviewed A
again.
B also underwent several interviews. After A’s May
12 and 13 disclosures, she and her sisters were referred
to the Coordinated Council for Children in Crisis (4C)
for counseling sessions with Diane Brinkman. On June
4, 1997, during one such session, while Brinkman and B
were alone, B disclosed that the petitioner had sexually
abused her on two occasions. Brinkman reported
this disclosure.
On June 5, 1997, Natale and Gambardella interviewed
B with her mother present. While there, Gambardella
also spoke to B’s sisters. C did not disclose any abuse
at that time. On June 11, 1997, Freudenthal interviewed
B at the clinic, with no one else present. Murphy took
a medical history from B, alone, before examining her.
On June 24, 1997, Brinkman spoke alone with B, who
had brought her sister C with her to 4C. Brinkman then
spoke with C, who disclosed for the first time that the
petitioner had sexually abused her in the past in her
parents’ bedroom. Brinkman did not question C further
at that time about the allegations, but counseled her
and then reported C’s disclosure to the department and
the police.
On July 2, 1997, C then also underwent an interview
and a medical examination. Freudenthal conducted the
interview in the same fashion as with A and B, alone.
Murphy then conducted a physical examination of C.
To evaluate this process, the petitioner presented an
expert witness, Mantell. He testified that, at least since
1987, there has been an understanding of best practices
to be followed when interviewing children about alleged
sexual abuse, and, after describing those practices, he
opined that they had been violated in various ways
during the interviews of A, B, and C.
Mantell opined that best practices were violated in
numerous respects during interviews of A. First, he
took issue with the fact that DeLancy interviewed A at
all, rather than simply reporting the abuse and then
waiting for others to determine how to proceed. Second,
Mantell criticized how these interviews were con-
ducted, particularly K’s involvement. According to Man-
tell, K’s presence, and the process of K doing most
of the talking and A merely affirming K’s statements,
created the possibility that A’s responses were either
coached by or entirely the product of K’s suggestions,
rather than A’s memory. K’s presence also put pressure
on A to confirm her friend’s account. Third, Mantell
suggested that DeLancy coaxed and validated the alle-
gations by urging A to tell the truth after she initially
denied abuse, and then by telling her to be brave and
that only through disclosure of abuse could her father
get help.
Mantell also criticized the subsequent interviews of
A, finding fault with the presence of multiple people in
the interview room—especially DeLancy, whose pres-
ence could have pressured A to keep her story consis-
tent with what she previously said to DeLancy rather
than to tell the truth. Mantell also criticized the lengthy
duration and repetition of the interviews, opining that
both could have hardened A’s belief in the events she
described, even if they never happened.
Mantell also opined that best practices were violated
during interviews of B. Mantell opined that the three
girls should have been separated during the period prior
to their May 13 interviews—although the habeas court
found that they were, in fact, interviewed separately—
to avoid cross-contamination between their stories in
the interviews. Regarding the June 5 interview, Mantell
again criticized the presence of multiple individuals and
the fact that B was asked what she had disclosed to
Brinkman, rather than simply being asked what had
happened.
Mantell repeated his criticisms of A’s and B’s inter-
views when he opined that best practices were violated
as well during the interviews of C. He added that in C’s
interview at the clinic, best practices had been violated
by having two people present, especially because one
of them was Brinkman, to whom C had previously dis-
closed and to whom it would therefore have been harder
subsequently to deny abuse.
Finally, Mantell criticized the police and the depart-
ment for not testing alternative theories, including
whether A had been influenced by K to fabricate her
complaint, as well as both entities’ failure to check the
source of the girls’ knowledge by questioning it.
The habeas court found Mantell’s testimony as to A
to be ‘‘logical and well-supported,’’ although the court
was less firm in this conclusion regarding B’s and C’s
interviews. It held that the theory of defense offered
by the petitioner would have been a reasonable defense
to present at the petitioner’s second criminal trial. The
habeas court further concluded, however, that Palmi-
eri’s failure to pursue this defense was not objectively
unreasonable, and in turn, that Attorney Visone’s deci-
sion not to challenge Palmieri’s failure was also not
objectively unreasonable.
In reaching these conclusions, the habeas court noted
several serious vulnerabilities of the defense advocated
by habeas counsel. First, the suggestive interview
defense would have left unexplained the damaging testi-
mony of two witnesses, L and D, each of whom testified
to learning of A’s abuse almost a year before DeLancy
conducted the first interview of A on May 12, 1997. The
habeas court found that neither witness was involved
in A’s disclosure to DeLancy.
Second, the suggestive interview defense was not
consistent with the pattern of the girls’ disclosures in
that if B’s and C’s interviews were suggestive by virtue
of A’s presence, one would have expected them to dis-
close abuse by the petitioner at those times, but in
fact, each denied it. Furthermore, B and C each later
disclosed abuse to Brinkman. In those interviews, she
was alone with each girl and made no attempt to elicit
details from either of them, suggesting that she followed
Mantell’s best practices. Indeed, the habeas court char-
acterized Mantell’s issues with B’s and C’s interviews
as ‘‘minor.’’
Third, there was little evidence to establish the sug-
gestive interview defense with respect to later inter-
views of B and C. Though Natale and Gambardella’s
interview of B was recorded and transcribed verbatim,
the habeas court could find nothing suggestive in it.
Other than Mantell’s criticism that Brinkman was pre-
sent for C’s interview, there was no evidence to show
that her interview at the office of Clifford Beers was
suggestive, either. The habeas court further noted that,
given the weaknesses of the defense as it could apply
to B and C, the jury could have been skeptical about
applying the suggestive interview defense to A as well.
Fourth, the suggestive interview defense would have
resulted in the jury’s hearing certain damaging testi-
mony that it did not otherwise hear from various wit-
nesses. For example, Gambardella, who did not testify
in the petitioner’s second criminal trial, testified in the
habeas trial that A specifically asked to speak to him
one-on-one, and that when she did so, she told him
unprompted that she knew what sex was and that her
father was having sex with her. This testimony would
have undermined the argument that A was pressured
to disclose by the presence of multiple interviewers,
and would also have served as constancy testimony to
corroborate A’s allegations. Freudenthal, whose notes
the habeas court deemed ‘‘mostly compliant’’ with Man-
tell’s view of best practices, could also have testified
as a constancy witness—as she otherwise could not
have because her interviews were after the girls dis-
closed their abuse to the police. Furthermore, in the
petitioner’s second criminal trial, Palmieri successfully
precluded DeLancy from discussing the details of the
abuse disclosed by A, but if he had argued that DeLan-
cy’s interview was suggestive and tainted the subse-
quent investigation, DeLancy would have had to
describe at least some of the details of what A disclosed
in order to show which specific acts K had described,
and suggestive questions DeLancy had asked.
We begin with our standard of review for the habeas
court’s findings and conclusions. ‘‘In a habeas appeal,
this court cannot disturb the underlying facts found by
the habeas court unless they are clearly erroneous, but
our review of whether the facts as found by the habeas
court constituted a violation of the petitioner’s constitu-
tional right to effective assistance of counsel is ple-
nary.’’ (Internal quotation marks omitted.) Williams v.
Commissioner of Correction, 142 Conn. App. 744, 752,
68 A.3d 111 (2013).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . When a [petitioner]
complains of the ineffectiveness of counsel’s assis-
tance, the [petitioner] must show that counsel’s repre-
sentation fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668,
687–88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A
[petitioner’s] claim that counsel’s assistance was so
defective as to require a reversal of the conviction . . .
has two components. First, the [petitioner] must show
that counsel’s performance was deficient. . . . Sec-
ond, the [petitioner] must show that the deficient per-
formance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Smith v. Commissioner of Correction, 141 Conn.
App. 626, 632, 62 A.3d 554 (2013).’’ (Citations omitted;
internal quotation marks omitted.) Williams v. Com-
missioner of Correction, supra, 142 Conn. App. 752.
‘‘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. . . . There
are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.
. . . 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.’’ (Citations
omitted; internal quotation marks omitted.) Strickland
v. Washington, supra, 466 U.S. 689–90.
‘‘[S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
Id., 690–91.
With these legal standards in mind, we turn to the
petitioner’s claim. Preliminarily, the petitioner chal-
lenges several factual findings of the habeas court. He
claims that the court’s findings that trial counsel had a
reasonable expectation that he would be able to present
evidence important to his theory and that Mantell had
‘‘only minor issues’’ regarding the conduct of B’s and
C’s interviews were clearly erroneous.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed [on appeal] unless they are clearly errone-
ous. . . . Thus, [t]his court does not retry the case or
evaluate the credibility of the witnesses. . . . Rather,
we must defer to the [trier of fact’s] assessment of
the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.
. . . 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. . . . Thus, the court’s
factual findings are entitled to great weight. . . . Fur-
thermore, [a] finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Citations omitted; internal quotation
marks omitted.) Orcutt v. Commissioner of Correction,
284 Conn. 724, 741–42, 937 A.2d 656 (2007).
None of the petitioner’s challenges to the factual find-
ings have merit. The record and memorandum of deci-
sion reflect that the petitioner was tried twice. Palmieri
thus had the opportunity to test the effectiveness of
the evidence upon which he based his theory of defense,
which rehearsal, by itself, provides record evidence
to support the habeas court’s finding. The petitioner’s
challenge to the habeas court’s finding that Mantell had
‘‘only minor issues’’ regarding B’s and C’s interviews is
similarly unfounded; Mantell testified only briefly about
the issues with the interviews of each girl, and discussed
the issues in a relatively cursory fashion and in consider-
ably less depth than he did for A’s interviews. There
was evidence to support the habeas court’s finding that
Mantell’s issues with these interviews were minor, and
its finding to that effect was not clearly erroneous.
Turning to the main substance of the petitioner’s
claim, that the habeas court improperly concluded that
Palmieri’s decision not to pursue a suggestive interview
defense constituted ineffective assistance of counsel,
we are similarly not persuaded. In its thorough and
well reasoned opinion, the habeas court recounted the
numerous pitfalls along the road not taken, which we
have summarized previously in this opinion. As dis-
cussed in more detail previously, the suggestive inter-
view defense would have left unexplained, and not been
consistent with, the testimony of L and D, to whom A
disclosed almost a year before she disclosed to
DeLancy, and neither of whom was involved in A’s
disclosure to DeLancy. Furthermore, if the interviews
had been suggestive, one would have expected A’s pres-
ence to pressure the other two girls to disclose during
their interviews while A was there, but in fact, they did
not do so at that time. Both girls also had subsequent
interviews with Brinkman which, in the habeas court’s
estimation, complied with Mantell’s described best
practices. Finally, as noted previously, pursuing a sug-
gestive interview defense likely would have resulted
in the jury hearing certain damaging testimony from
constancy of accusation witnesses, including from
Gambardella, who A spoke with alone and told
unprompted that her father was having sex with her.
The petitioner has not ‘‘overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Internal quo-
tation marks omitted.) Strickland v. Washington, supra,
466 U.S. 689. Examining the situation from Palmieri’s
perspective before the second criminal trial, pursuing
the strategy of the first trial—that the allegations of
sexual abuse were false and were the product of the
influence of A’s friends—did not fall below an objective
standard of reasonableness. See id., 688. Palmieri’s
choice of strategy at the outset of the second trial was
not unreasonable. He had marshaled evidence to sup-
port a theory that the allegations were false, including
evidence that as early as December, 1996, H and K
were making unfounded complaints to the department
regarding the petitioner. He intended to argue to the
jury that these earlier complaints, in conjunction with
K’s extensive participation in A’s initial interview with
DeLancy, led to A’s fabrication, which B and C corrobo-
rated with their own so that others would believe A.
The petitioner nonetheless argued that however rea-
sonable it was for Palmieri to pursue this strategy in
the first trial, he was deficient for having done so in
the second, because he had lost the element of surprise
and therefore should have anticipated that the state
would be ready to counter the same defense. In support
of this argument, the petitioner points out that the state
successfully persuaded the court to preclude much of
the evidence regarding H’s and K’s complaints that
Palmieri used in the first trial. The petitioner further
observes that the victims were better witnesses in the
second trial than in the first.
We are not persuaded. The fact that the court made
these rulings during trial does not mean that Palmieri
reasonably should have anticipated them at the outset.
Indeed, recalling the first trial, in which the evidence
precluded in the second trial was admitted, Palmieri
could reasonably have expected similar rulings. The
petitioner also had available the transcripts of the first
trial to control or impeach witnesses who testified dif-
ferently than they had in the first trial.
In his appellate brief, the petitioner relies heavily
upon cases that discuss trial counsel’s failure to call
expert witnesses in sexual assault cases. See, e.g.,
Michael T. v. Commissioner of Correction, 307 Conn.
84, 100–101, 52 A.3d 655 (2012); Peruccio v. Commis-
sioner of Correction, 107 Conn. App. 66, 76, 943 A2d
1148 (2008); Lindstadt v. Keane, 239 F.3d 191 (2d Cir.
2001). The petitioner’s reliance is misplaced, however,
because these cases merely make the point that ‘‘in
certain instances, the employment of an expert for the
defense may be constitutionally mandated by the facts
and surrounding circumstances of the case . . . .’’
Michael T. v. Commissioner of Correction, supra, 101.
Moreover, in Michael T., the expert witness in issue
was found not to be constitutionally required. Id. Under
the facts of this trial, however, an expert likely would
have provided testimony substantially similar to that
given by Mantell in the habeas trial, and even with such
expert testimony, the theory of defense still would have
been vulnerable to the same weaknesses described by
the habeas court. Palmieri’s performance was not defi-
cient for having chosen the strategy that he did.
II
The petitioner further claims that the habeas court
erred by holding that the petitioner’s initial habeas
counsel did not provide ineffective assistance of coun-
sel by failing to raise the claim that Palmieri mischarac-
terized testimony of the allegations and elicited
additional damaging testimony during his cross-exami-
nation of A. Specifically, the petitioner argues that Palm-
ieri brought out that A’s abuse began in the fourth grade,
rather than the fifth, as she had initially testified on
direct examination; that Palmieri elicited that A’s abuse
occurred with a certain frequency, after she initially
had not testified to any frequency; that Palmieri elicited
that the petitioner requested and/or performed addi-
tional types of sexual abuse on A and C; and finally,
that Palmieri sought to elicit that A disclosed abuse to
both H and K, after she had initially testified to having
disclosed to K only. We disagree.
The following facts, as found by the habeas court,
and procedural history are relevant to this claim. In the
petitioner’s second criminal trial, A testified on direct
examination that the petitioner began sexually abusing
her when she was in the fourth grade. She then testified
that he started to have penile/vaginal sex with her when
she was in the fifth grade. Later on during direct exami-
nation, A testified that she had oral sex with the peti-
tioner, but described vaginal sex when she did so. Later
still on direct examination, however, she testified that
the petitioner put his penis in her mouth once.
On cross-examination, Palmieri elicited that K had
told Remillard that the petitioner had been having sex
with A once per week or once per month since the fifth
grade. Palmieri also asked A if she had told someone
at the clinic that she did not have oral sex with the
petitioner, to which A answered that she could not
recall. Palmieri also brought out the fact that A had
previously claimed that the petitioner had put his penis
on her buttocks, which A denied was untrue despite
not having repeated the claim on direct examination.
Palmieri revisited these subjects during cross-exami-
nation of Murphy and Leventhal. During cross-examina-
tion of Murphy, Palmieri elicited testimony from
Murphy that A had told Murphy that the petitioner
wanted A to perform oral sex on him, but that it never
happened. Palmieri also brought out that A told Murphy
that she had sex with the petitioner ‘‘once a month or
once a week, like 20 or 10 times.’’ He also brought out
that A told Murphy that the petitioner had performed
anal sex on A thirteen days prior to Murphy’s physical
examination of her, but that this examination found
no physical evidence of this. During Palmieri’s cross-
examination of Leventhal, Palmieri tried to establish
that if the petitioner had been having vaginal inter-
course with A once per week over a three year period,
A’s hymen would be much more damaged than what
was revealed during her physical examination.
During closing arguments, Palmieri highlighted the
inconsistencies in A’s testimony regarding how fre-
quently she claimed to have been abused. Palmieri
argued that at the extreme, A’s testimony could be
understood to mean that the petitioner had sex with
her once per week over three years—or 150 times. The
habeas court found that Palmieri ‘‘probably misstated
the evidence’’ by suggesting that the sexual intercourse
started in the fourth, rather than the fifth grade, such
that the number of occurrences would have been closer
to 100 than 150.
As to C, the habeas court found that during her direct
examination, she testified that, on multiple occasions,
the petitioner had put his hand down her shirt or pants
and touched her, and that when she tried to stop him,
he pulled her back on his bed by her hair. On cross-
examination, Palmieri elicited that more than once after
A’s disclosure, C had denied having been abused. He
also got her to admit that the petitioner had never
inserted his finger into her vagina. Palmieri then got
her to admit that she had told Brinkman that the peti-
tioner had put his penis on her vagina. On cross-exami-
nation of Natale about C’s disclosure, Palmieri brought
out that C told Natale that any contact with the peti-
tioner occurred on the outside of her clothing.
The standard of review and law regarding ineffective
assistance of counsel are set forth previously in this
opinion.
The elicitations by Palmieri with which the petitioner
takes issue do not constitute deficient performance,
and, accordingly, Visone’s failure to raise them in the
petitioner’s initial habeas action also was not deficient.
Palmieri’s strategy, devised after noting the various
changes in the victims’ accounts of what had transpired,
was to impeach the victims’ testimony through prior
inconsistencies or denials. His questions, which high-
lighted discrepancies in the details of the acts of which
they accused the petitioner, or outright denials thereof,
furthered this strategy. Asking these questions was,
therefore, precisely the type of strategic choice that
Strickland deemed ‘‘virtually unchallengeable.’’ Strick-
land v. Washington, supra, 466 U.S. 690.
As to Palmieri’s misstatement of the evidence of how
many acts of sexual intercourse A experienced, the
error was not a significant one, and indeed, Palmieri
had legitimate reasons, which were consistent with his
strategy of impeachment, for focusing on the large num-
ber of alleged acts. He used the number to contrast A’s
claims of once-weekly abuse over an extended period
to Remillard and Murphy with her statement to Murphy
that she had sex with the petitioner 10 or 20 times.
Palmieri also used this contrast to undermine the credi-
bility of Murphy and Leventhal’s medical findings.
Again, dwelling on this number was a strategic decision,
and Palmieri’s performance did not fall below an objec-
tive standard of reasonableness. See Strickland v.
Washington, supra, 466 U.S. 688.
III
The petitioner also claims that the habeas court erred
by overruling the petitioner’s objection to Gambardel-
la’s testimony about statements made to him by A, who
did not testify. Specifically, the petitioner argues that
the statements were hearsay and, as the habeas court
had acknowledged, were not within any exception, and
that even if they were not barred by the rule against
hearsay, they were nonetheless inadmissible because
they were not relevant to rebut the petitioner’s theory
of defense at the habeas trial. The respondent does not
challenge either of these arguments directly, but instead
counters that the petitioner opened the door to the
challenged testimony, or that the statements were
harmless because they were cumulative of other testi-
mony. Although we agree with the petitioner that the
testimony was hearsay not within an exception, we
agree with the respondent that admitting the testimony
was harmless error.4
The following procedural history is relevant to this
claim. During the habeas trial, the petitioner called
Gambardella to testify. On cross-examination, the attor-
ney for the respondent asked, ‘‘[I]t’s true that [A] in
fact claimed that her father was having sex with her,
right?’’ to which Gambardella responded ‘‘Correct.’’ At
this point, the petitioner’s counsel objected on the
grounds of hearsay. After some argument, during which
the court acknowledged that the testimony was not
admissible under any of the hearsay exceptions dis-
cussed, the court nonetheless admitted it into
evidence.5
‘‘To the extent a trial court’s admission of evidence
is based on an interpretation of the Code of Evidence,
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. They require determinations about which rea-
sonable minds may not differ; there is no ‘judgment call’
by the trial court, and the trial court has no discretion to
admit hearsay in the absence of a provision providing
for its admissibility. . . . We review the trial court’s
decision to admit evidence, if premised on a correct
view of the law, however, for an abuse of discretion.’’
(Citations omitted.) State v. Saucier, 283 Conn. 207,
218, 926 A.2d 633 (2007).
‘‘An out-of-court statement offered to establish the
truth of the matter asserted is hearsay. . . . As a gen-
eral rule, such hearsay statements are inadmissible
unless they fall within a recognized exception to the
hearsay rule.’’ (Internal quotation marks omitted.) Id.,
223; see Conn. Code Evid. § 8-1 (3) (hearsay is ‘‘a state-
ment, other than one made by the declarant while testi-
fying at the proceeding, offered in evidence to establish
the truth of the matter asserted’’); Conn. Code Evid.
§ 8-2 (such statements inadmissible unless within rec-
ognized exception).
The admitted testimony was hearsay because it con-
sisted of out-of-court statements made by A to Gamba-
rdella, which were offered by the respondent to
establish the truth of the matter asserted therein. See
State v. Saucier, supra, 283 Conn. 223. Gambardella’s
testimony recited statements A made to him during
an interview conducted before the habeas trial. The
attorney for the respondent argued, albeit indirectly,
that the statements were offered to prove that Palmieri’s
performance was not constitutionally deficient, or,
alternatively, that because Gambardella’s testimony
also contained statements that would have incriminated
the petitioner, Palmieri’s failure to pursue a suggestive
interview defense through him did not prejudice the
petitioner.6
Furthermore, the testimony did not fall within the
exception for prior consistent statements, nor the
exception for constancy of accusation evidence. See
State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996).
Nor did it fall within any other recognized exception.
It was, therefore, not admissible, and the trial court
abused its discretion in admitting it.
The admission of the testimony was, however, harm-
less error. ‘‘When reviewing claims of error, we examine
first whether the trial court abused its discretion, and,
if so, we next inquire whether the error was harmless.
. . . When an error is not of constitutional magnitude,
the defendant bears the burden of demonstrating that
the error was harmful. . . . The proper standard for
review of a defendant’s claim of harm is whether the
. . . verdict was substantially swayed by the error.
. . . Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Payne, 303 Conn. 538, 552–53, 34 A.3d 370 (2012). In
this case, the petitioner cannot carry this burden. The
habeas court reviewed several days’ worth of testimony
from numerous witnesses, as well as a number of exhib-
its, including the transcripts from the petitioner’s two
criminal trials. The improperly admitted testimony was
cumulative of this evidence, some of which contained
testimony and other evidence of the petitioner’s acts
of abuse apart from her bare statement to Gambardella.
The facts in issue, furthermore, were the constitutional
adequacy of Palmieri’s legal representation, and, if that
representation were found to be deficient, whether that
deficiency prejudiced the petitioner. The voluminous
record of the proceedings below gives this court ‘‘fair
assurance that the error did not substantially affect’’;
(internal quotation marks omitted) id., 553; the habeas
court’s findings and conclusion.
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 victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
The court granted the petitioner’s petition for certification to appeal.
See General Statutes § 52-470 (g).
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
3
The petitioner was never charged with any wrongdoing to A’s third sister.
4
In light of our conclusion that the admission of Gambardella’s testimony
was harmless error, we need not and do not consider the petitioner’s addi-
tional contention that the testimony was irrelevant, or the respondent’s
related claim that the petitioner opened the door to its admission. Further-
more, the record reveals that the sole basis for the petitioner’s objection
at trial was hearsay. The petitioner did not object on the basis of relevance
and, accordingly, that claim is not preserved for our review. See Practice
Book § 60-5 (court not bound to consider claim unless ‘‘distinctly raised’’);
Council v. Commissioner of Correction, 286 Conn. 477, 498, 944 A.2d 340
(2008) (‘‘It is well established that [a] party cannot present a case to the
trial court on one theory and then seek appellate relief on a different one
. . . . For this court to . . . consider [a] claim on the basis of a specific
legal ground not raised during trial would amount to trial by ambuscade,
unfair both to the [court] and to the opposing party.’’ [Internal quotation
marks omitted.])
5
The court’s ruling was as follows: ‘‘Yeah, well the question is whether
you could have actually gotten this in at trial. But for the purposes of this
trial though without knowing exactly where the—the petitioner’s claim is
going on this, it may be relevant to the prejudice issue and for that reason,
I’m going to overrule the objection.
‘‘The witness can testify to it and I’ll consider . . . whether it relates to
undermining the claim of prejudice because I think that’s the only possible
thing it could be relevant to and then—and even then I’m still not convinced
that it would have come in. But for the purposes of this hearing, I’ll—I’ll
allow it.’’
6
The attorney for the respondent stated: ‘‘[To] allow the [petitioner] to
present [a] witness and then prevent the state from bringing out the harmful
testimony that that witness had to offer, especially when [the petitioner is]
challenging [Palmieri’s] representation for not putting forth that evidence,’’
whereupon the court interrupted him with its ruling. See footnote 5 of
this opinion.