Victor C. v. Commissioner of Correction ( 2018 )

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VICTOR C.* v. COMMISSIONER
OF CORRECTION
(AC 39582)
Lavine, Prescott and Bear, Js.
Syllabus
The petitioner, who had been convicted of the crime of risk of injury to a
child in connection with his alleged sexual abuse of his minor stepdaugh-
ter, sought a writ of habeas corpus, claiming that he had received ineffec-
tive assistance from his trial counsel. Specifically, he claimed that his
trial counsel improperly failed to present testimony from certain wit-
nesses, to advise him properly as to his right to testify and to present
testimony from an expert on child sexual abuse. The habeas court
rendered judgment denying the petition for a writ of habeas corpus,
from which the petitioner, on the granting of certification, appealed to
this court. Held:
1. The habeas court properly determined that trial counsel’s decision not
to present testimony from the petitioner’s sister and former wife did
not constitute deficient performance, counsel’s decision having been
strategic in nature; that court credited counsel’s testimony that he did
not have the former wife testify due to her serious battle with drug
addiction and because she would not have been a reliable witness, it
concluded that testimony from the petitioner’s sister would have been
cumulative of that of another witness, who testified in the criminal trial
instead of the petitioner’s sister, and the petitioner failed to present any
evidence that testimony from his former wife and sister would have
benefited his defense.
2. The petitioner could not prevail on his claim that the habeas court improp-
erly found that he was not prejudiced by his trial counsel’s failure to
advise him fully of his right to testify at trial and by counsel’s having
dissuaded him from testifying; that court found that trial counsel had
provided the petitioner with strategic and considered legal advice not
to testify on the basis of counsel’s prior criminal trial experience, and
his assessment of the strength of the state’s case and of the petitioner’s
status as a sentenced prisoner and ability to testify on cross-examination
without damaging the defense, and counsel’s advice did not constitute
deficient performance, or prejudice the petitioner, as the court found
that the petitioner did not insist on testifying, it credited counsel’s
testimony that he made the petitioner aware that the ultimate decision
to testify belonged to the petitioner, and it found that the petitioner’s
testimony that trial counsel had met with him only once was thoroughly
unconvincing and that it was not reasonably probable that the petitioner
would have received a more favorable verdict, given his unconvincing
explanation for the victim’s allegations against him, combined with the
likelihood that cross-examination would have exposed him as a drug
abusing felon with no current, positive relationship with his children.
3. The petitioner could not prevail on his claim that the habeas court improp-
erly determined that his trial counsel did not render ineffective assis-
tance by failing to consult an expert on child sexual abuse or to present
expert testimony in that regard; the habeas court credited counsel’s
testimony regarding his knowledge of how to try a sexual assault case,
found that impeachment evidence at the criminal trial supported the
petitioner’s defense that the victim had fabricated her allegations against
him, and found that counsel had conducted an extensive cross-examina-
tion of the victim by pointing out inconsistencies between the medical
and investigation records, and the victim’s testimony and that of other
witnesses, and the petitioner failed to provide evidence that the outcome
of the criminal trial would have been different had his counsel consulted
with an expert on child sexual abuse.
Argued October 10, 2017—officially released February 13, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Isaias Luis Pedraza, assigned counsel, for the appel-
lant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Emily D. Trudeau, assistant state’s attorney,
for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Victor C., appeals from
the judgment of the habeas court denying his amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court improperly
found that his trial counsel did not render ineffective
assistance by (1) failing to present testimony from cer-
tain fact witnesses, (2) improperly advising him of his
right to testify at trial, and (3) failing to consult and
present testimony from an expert in the field of child
sexual abuse. We affirm the judgment of the habeas
court.
The petitioner was convicted of risk of injury to a
child in violation of General Statutes § 53-21 (a) (2)
and was sentenced to twenty years of incarceration,
execution suspended after fifteen years, and ten years
of probation. State v. Victor C., 145 Conn. App. 54, 58,
75 A.3d 48, cert. denied, 310 Conn. 933, 78 A.3d 859(2013). The facts underlying the petitioner’s conviction
were set out by this court in his direct appeal. See id.The petitioner is the victim’s stepfather. Id., 56. In
2009, the victim was thirteen years old and living in a
house with her grandparents, uncle, one or two younger
siblings, and the petitioner. Id. Her mother, who was
receiving drug treatment, was not living in the house.
Id. One night, the petitioner entered the victim’s bed-
room. Id. After removing the victim’s clothing, the peti-
tioner rubbed his erect penis on her breasts and vagina.
The victim did not stop the petitioner because she was
scared. Id. The victim informed her mother and her
uncle’s girlfriend of the incident. Id., 56–57. At about
the same time, the victim’s special education teacher
noticed a change in the victim’s demeanor and con-
fronted the victim. Id., 57. The victim disclosed the
incident to her teacher, who was a mandated reporter
of suspected child abuse. Id. The teacher took the victim
to the school social worker, and the Department of
Children and Families (department) was contacted. Id.The victim was later interviewed by members of the
department and, thereafter, interviewed and physically
examined by a nurse practitioner at the child sexual
abuse clinic at Yale-New Haven Hospital. Id. The peti-
tioner subsequently was arrested and charged with mul-
tiple crimes.1 Id. The jury, however, found him guilty
only of risk of injury to a child.2 Id., 58. This court
affirmed his conviction on direct appeal. Id., 75.
The petitioner, who was then self-represented, filed
an application for a writ of habeas corpus on October
18, 2012. On October 1, 2014, following the appointment
of counsel, the petitioner filed an amended petition for
a writ of habeas corpus in which he alleged that he
was denied the effective assistance of counsel because
counsel failed to call certain witnesses, failed ade-
quately to cross-examine witnesses, failed to advise him
of his right to testify and did not permit him to testify,
and failed to consult and present testimony from an
expert knowledgeable about the effects of sexual
assault on child victims. Following trial, the habeas
court found that the petitioner’s trial counsel did not
render ineffective assistance by failing to call certain
witnesses and that his cross-examination of the state’s
witnesses was not deficient. Although counsel advised
the petitioner not to testify, the habeas court concluded
that the petitioner made the ultimate decision not to
testify and was not prejudiced by his counsel’s advice.
The habeas court denied the petition for a writ of habeas
corpus but granted the petitioner certification to appeal.
We first set out our standard of review. ‘‘The standard
of appellate review of habeas corpus proceedings is
well settled. The underlying historical facts found by
the habeas court may not be disturbed unless the find-
ings were clearly erroneous. . . . Historical facts con-
stitute a recital of external events and the credibility
of their narrators. . . . [M]ixed questions of fact and
law, which require the application of a legal standard
to the historical-fact determinations, are not facts in
this sense. . . . Whether the representation a defen-
dant received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, that
question requires plenary review by [an appellate] court
unfettered by the clearly erroneous standard.’’ (Internal
quotation marks omitted.) Jarrett v. Commissioner of
Correction, 108 Conn. App. 59, 69–70, 947 A.2d 395,
cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).
In the present case, the petitioner claims that he was
denied his constitutional right to the effective assis-
tance of his trial counsel. ‘‘To determine whether the
petitioner has demonstrated that counsel’s perfor-
mance was ineffective, we apply the two part test estab-
lished in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective
assistance during a criminal proceeding must be sup-
ported by evidence establishing that (1) counsel’s repre-
sentation fell below an objective standard of
reasonableness, and (2) counsel’s deficient perfor-
mance prejudiced the defense because there was a rea-
sonable probability that the outcome of the proceedings
would have been different had it not been for the defi-
cient performance. . . . The first prong requires a
showing that counsel made errors so serious that coun-
sel was not functioning as the counsel guaranteed the
defendant by the [s]ixth [a]mendment.’’ (Emphasis in
original; internal quotation marks omitted.) Jarrett v.
Commissioner of Correction, supra, 108 Conn. App. 70.
‘‘To satisfy the second prong of Strickland, that is
counsel’s deficient performance prejudiced his defense,
the petitioner must establish that, as a result of his
trial counsel’s deficient performance, there remains a
probability sufficient to undermine confidence in the
verdict that resulted in his appeal. . . . The second
prong is thus satisfied if the petitioner can demonstrate
that there is a reasonable probability that, but for that
ineffectiveness, the outcome would have been different.
. . . In order to prevail, a petitioner must prevail on
both Strickland prongs. . . . Put another way, [i]t is
axiomatic that courts may decide against a petitioner on
either prong, whichever is easier.’’ (Citations omitted;
internal quotation marks omitted.) Gooden v. Commis-
sioner of Correction, 169 Conn. App. 333, 341, 150 A.3d
738 (2016).
‘‘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 inherent in making the evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy.’’ (Internal quotation marks omit-
ted.) Adorno v. Commissioner, 66 Conn. App. 179, 182–
83, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d
428 (2001).
I
The petitioner first claims that the habeas court
improperly found that his trial counsel did not render
ineffective assistance by failing to investigate and pre-
sent testimony from J and V, potential fact witnesses.
We disagree.
The petitioner’s theory of defense was fabrication on
the part of the victim. At trial, trial counsel called only
one witness, the petitioner’s brother-in-law, D, to testify.
At the habeas trial, the petitioner argued that if counsel
had called his then wife, J, and his sister, V, their testi-
mony would have contradicted the victim’s testimony
by providing evidence as to where the petitioner was
living at the time of the assault and the nature of his
relationship with the victim. Both witnesses were sub-
poenaed and available to testify at the criminal trial. The
petitioner alleged that trial counsel’s failure to present
testimony from either woman fell below the standard
of a reasonably competent criminal defense lawyer. Had
either of them testified, he further alleged, there is a
reasonable probability that the jury would have found
him not guilty of risk of injury to a child.
At the habeas trial, trial counsel testified that he
retained Gregory Senneck of J & G Investigations to
investigate potential witnesses, including members of
the petitioner’s family, but personally spoke only to D
and V. Trial counsel testified that he does not call many
witnesses during a criminal trial if he concludes that
the state has not proven its case-in-chief. Trial counsel
elected not to call J due to her serious battle with drug
addiction. He also was of the opinion that she would
have been ‘‘a loose cannon’’ on the witness stand. Trial
counsel did not call V because she was the petitioner’s
relative; instead, he chose to have her husband testify.
The petitioner’s habeas counsel was unable to locate
J at the time of the habeas proceeding and, therefore,
she did not testify. The petitioner’s expert legal witness,
Attorney Vicki Hutchinson, testified that she never
interviewed J or V and did not know whether either
one of them would have offered testimony that would
have been helpful to the petitioner.
The habeas court rejected the petitioner’s claim that
trial counsel’s failure to have either of the women testify
constituted deficient performance or that the petitioner
was prejudiced by his failure to do so. Because J did
not testify at the habeas trial, the court was unable to
determine what evidence she would have provided at
the criminal trial or to evaluate her as a witness. The
habeas court found that the petitioner produced no
credible evidence to rebut the presumption of counsel’s
competence to make an appropriate strategic decision
not to have J testify, given her ‘‘condition.’’ The habeas
court accepted trial counsel’s testimony that J would
not have been a reliable witness capable of limiting
her testimony to the relevant issues. The habeas court
concluded, therefore, that trial counsel’s decision not
to have her testify was strategic in nature.
V testified at the habeas trial that an investigator told
her that it was not in the petitioner’s best interests for
her to testify because she was related to him. D, her
then husband, would testify instead. The habeas court
found that ‘‘[a]t best, [V’s] testimony would have been
cumulative to that of’’ D. The habeas court concluded
that counsel’s decision to present the testimony of the
petitioner’s brother-in-law, rather than that of his sister,
was strategic in nature and conformed to the required
standard of reasonableness for defense counsel. More-
over, the habeas court found that the petitioner failed
to present any evidence that V’s and J’s testimony would
have benefited the petitioner’s defense.
‘‘The failure of the petitioner to offer evidence as to
what [a witness] would have testified is fatal to his
claim. . . . The petitioner seeks to have us use hind-
sight with [regard] to his counsel’s decision not to call
the witnesses to testify. We will not do so. We have
stated that the presentation of testimonial evidence is
a matter of trial strategy. . . . The failure of defense
counsel to call a potential witness does not constitute
ineffective assistance unless there is some showing that
the testimony would have been helpful in establishing
the asserted defense.’’ (Citation omitted; internal quota-
tion marks omitted.) Adorno v. Commissioner of Cor-
rection, supra, 66 Conn. App. 186.
We have reviewed the record and the habeas court’s
memorandum of decision and conclude that the court
properly found that trial counsel’s trial strategy not
to call the petitioner’s former wife and sister did not
constitute deficient performance. The petitioner’s
claim fails.
II
The petitioner’s second claim is that the habeas court
improperly found that he was not prejudiced by his
counsel’s failure to advise him fully of his right to testify
at trial and dissuading him from doing so. Given the
particular facts of this case, we disagree.
The following facts are relevant to this claim. The
petitioner did not testify at his criminal trial. In his
amended petition for a writ of habeas corpus, he alleged
that he did not testify on the advice of his trial counsel,
which was unreasonable, and that if he had testified,
he would have been found not guilty of any of the
charges against him. By advising him not to testify, or
not permitting him to testify, the petitioner claims that
trial counsel failed in his duty to protect the petitioner’s
constitutional right to testify. He further alleged that if
trial counsel had advised him of his right to testify, he
would have testified to facts that challenged the victim’s
credibility and, therefore, the outcome of the proceed-
ing would have been different.
It is the responsibility of trial counsel to advise a
defendant of the defendant’s right to testify and to
ensure that the right is protected. ‘‘[T]he if and when
of whether the accused will testify is primarily a matter
of trial strategy to be decided by the defendant and his
attorney.’’ (Internal quotation marks omitted.) Coward
v. Commissioner of Correction, 143 Conn. App. 789,
799, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d
32 (2013). The decision of whether to testify on one’s
own behalf, however, ultimately is to be made by the
criminal defendant. Wainwright v. Sykes, 433 U.S. 72,
93 n.1, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (Burger,
C. J., concurring). The petitioner’s legal expert, Hutchin-
son, testified that the standard of competent representa-
tion is for defense counsel to advise the client of the
advantages and disadvantages of testifying, but that the
decision to testify is to be made by the client.
At the habeas trial, the petitioner testified that on
more than one occasion he informed trial counsel that
he wanted to testify. He also testified that trial counsel
advised him that it was not in his best interest to testify
because he was a sentenced prisoner. The petitioner
acknowledged that he was serving a prison sentence
that concerned several firearms related convictions and
that he had two prior felony convictions related to con-
spiracy to commit murder and drugs. Trial counsel testi-
fied that he most likely advised the petitioner not to
testify because he was serving a sentence on an unre-
lated matter and did not want that information to come
out on cross-examination. He also testified that he ‘‘per-
mits’’ criminal defendants to testify only if they insist
and that the petitioner did not insist on testifying. Trial
counsel, however, testified that the decision as to
whether a criminal defendant testifies at trial is to be
made by defense counsel.3
The habeas court found that trial counsel was a credi-
ble witness and that he did not provide deficient perfor-
mance that resulted in prejudice to the petitioner. The
court further found that trial counsel provided the peti-
tioner with strategic and considered legal advice on the
basis of, among other things, counsel’s prior criminal
trial experience, his assessment of the strength of the
state’s case at the close of its case-in-chief, his assess-
ment of the petitioner’s ability to testify on cross-exami-
nation without damaging the defense, and the
petitioner’s status as a sentenced prisoner. The habeas
court credited trial counsel’s testimony that he made
the petitioner aware that the ultimate decision to testify
belonged to the petitioner, regardless of legal advice.
Also, the habeas court found that the petitioner did not
insist on testifying. The habeas court also found that
the petitioner had been convicted of felony charges and
that if the convictions occurred within ten years of
the underlying trial, the convictions could have been
admitted into evidence as unnamed felony convictions.
The habeas court, therefore, found that trial counsel’s
advice that the petitioner not testify was strategic in
nature and not unreasonable, based on appropriate
legal and factual considerations, and was sound given
the totality of the circumstances. The habeas court con-
cluded that trial counsel’s representation was not
deficient.
With respect to the petitioner’s habeas testimony and
his decision not to testify in his criminal trial, the habeas
court found that the petitioner’s testimony was thor-
oughly unconvincing. The court particularly discredited
his testimony that trial counsel met with him only once
and that he never spoke to anyone else from the
defense. Moreover, the court found that the petitioner
testified that he met with an investigator regarding his
background and the allegations against him. The court
credited the petitioner’s testimony that trial counsel
advised him that it was not in his best interest to testify
given the sentence he was serving for firearms related
offenses. The habeas court, therefore, found that it was
not reasonably probable that the petitioner would have
received a more favorable verdict, given his unconvinc-
ing ‘‘innocent explanation’’ for the victim’s allegations
against him, combined with the likelihood that cross-
examination would have exposed him ‘‘as a drug abus-
ing felon with no current positive relationship with his
children . . . .’’
We have reviewed the record and conclude that the
habeas court’s finding that trial counsel did not render
ineffective assistance with respect to his advice to the
petitioner about testifying was not improper and, even
if his advice were deficient, the petitioner was not preju-
diced by the advice.
III
The petitioner next claims that the habeas court
improperly found that trial counsel did not render inef-
fective assistance by failing to consult an expert in the
field of child sexual abuse prior to trial or to present
expert testimony in that regard. He argues that had trial
counsel consulted an expert in the field of child sexual
abuse, presented expert testimony on those matters,
and effectively cross-examined witnesses in regard
thereto, there is a reasonable probability that he would
have been acquitted of the risk of injury to a child
charge. More specifically, the petitioner contends that
because trial counsel has no degree or experience in
clinical or forensic psychology, his failure to consult
an expert led to deficient cross-examinations of the
state’s professional witnesses and the victim herself.
We are not persuaded.
The following facts are relevant to our resolution of
the petitioner’s claim. At the habeas trial, the petitioner
presented expert testimony from Hutchinson and
Nancy Eiswirth, a forensic psychologist, who testified
about the topics trial counsel could have discussed with
an expert and the manner in which such consultation
would have contributed to his cross-examination of
witnesses. Hutchinson testified that had trial counsel
consulted with an expert in child sex abuse, he could
have conducted a targeted, more ‘‘intense’’ cross-exami-
nation of nurse practitioner Janet Murphy regarding the
results of her physical examination; special education
teacher Maria Altobelli as to the fluctuations in the
victim’s demeanor; and forensic interviewer Kevin
Sheehy about the victim’s conduct and body language
during the interview. Eiswirth testified that, with the
services of an expert, trial counsel could have investi-
gated further issues pertaining to the victim’s testimony
and disclosures during the forensic interview, such as
the victim’s negative affect or the leading nature of the
questions she was asked. An expert also could have
pointed out inconsistencies between the medical evi-
dence and the victim’s testimony. On the basis of Eisw-
irth’s testimony, the petitioner argues, an expert not
only could have strengthened trial counsel’s cross-
examination of the witnesses but also could have
strengthened the defense, and the outcome would have
been different.
Trial counsel testified that he did not consult a mental
health expert, given his experience trying child sexual
abuse cases and having attended seminars on the sub-
ject. Given his knowledge and experience, he believed
that his review of the medical records and investigation
reports was sufficient to prepare him to cross-examine
the victim and the state’s professional and expert wit-
nesses.
The habeas court credited trial counsel’s testimony
regarding his knowledge of how to try a sexual assault
case, noting that it was validated by the trial record.
The court found that the petitioner did not introduce
convincing evidence that trial counsel was inexperi-
enced in matters regarding child sexual abuse. Although
Hutchinson testified that trial counsel could have done
more to cross-examine the witnesses, she conceded
that his cross-examination was ‘‘sufficient . . . .’’ The
habeas court found, on the basis of Hutchinson’s testi-
mony, that trial counsel conducted an extensive cross-
examination of the victim, managing to point out incon-
sistencies in her testimony. The court also found that
trial counsel was at least as knowledgeable about the
relevant issues as Hutchinson and more prepared at
the criminal trial than Eiswirth, who testified that she
had read only some of the trial transcripts.
The habeas court also cited the following relevant
principles of law. A defense counsel’s failure to call an
expert witness alone ‘‘does not constitute ineffective
assistance unless there is some showing that the testi-
mony would have been helpful in establishing the
asserted defense.’’ (Internal quotation marks omitted.)
Eastwood v. Commissioner of Correction, 114 Conn.
App. 471, 481, 969 A.2d 860, cert. denied, 292 Conn. 918,
973 A.2d 1275 (2009). The fact that counsel could have
inquired more deeply into certain matters, or failed to
inquire into all areas claimed to be important, falls short
of establishing deficient performance. Velasco v. Com-
missioner of Correction, 119 Conn. App. 164, 172, 987
A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289(2010).
In the present matter, the habeas court found that
trial counsel pointed out the inconsistencies between
the medical and investigation records, and the victim’s
testimony and that of others. That impeachment evi-
dence supported the petitioner’s defense that the victim
had fabricated her allegations against the petitioner.
‘‘An attorney’s line of questioning on examination of a
witness clearly is tactical in nature. [As such, this] court
will not, in hindsight, second-guess counsel’s trial strat-
egy.’’ State v. Drakeford, 63 Conn. App. 419, 427, 777
A.2d 202 (2001), aff’d, 261 Conn. 420, 802 A.2d 844(2002). The habeas court noted that defense counsel
should avoid alienating the jury by evoking sympathy
for the victim. ‘‘[C]ross-examination is a sharp two-
edged sword and more criminal cases are won by not
cross-examining adverse witnesses, or by a very selec-
tive and limited cross-examination of such witnesses,
than are ever won by demolishing a witness on cross-
examination.’’ (Internal quotation marks omitted.) State
v. Clark, 170 Conn. 273, 287–88, 365 A.2d 1167, cert.
denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208(1976). Finally, the habeas court found that the peti-
tioner had failed to provide evidence that the outcome
of the criminal trial would have been different had trial
counsel consulted with an expert on child sexual abuse.
On the basis of our review of the record, the habeas
court’s analysis of the petitioner’s claim, and its conclu-
sion that trial counsel did not render deficient perfor-
mance and that the petitioner was not prejudiced by
trial counsel’s failure to consult with an expert on child
sexual assault, we conclude that the petitioner failed
to carry his burden under Strickland.
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 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.
1
Initially, the state charged the petitioner with sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in
the second degree in violation of General Statutes § 53a–71 (a) (1), risk of
injury to a child in violation of § 53-21 (a) (2), and threatening in the second
degree in violation of General Statutes § 53a-62 (a) (1). State v. Victor C.,
supra, 145 Conn. App. 57. The state subsequently filed a substitute informa-
tion in which it withdrew the charge of threatening in the second degree. Id.2
Following the state’s case-in-chief, the court granted the petitioner’s
motion for a judgment of acquittal on the charge of sexual assault in the
first degree. State v. Victor C., supra, 145 Conn. App. 58. The jury was unable
to reach a unanimous verdict on the charge of sexual assault in the second
degree. Id.3
Trial counsel’s belief that defense counsel is the one entitled to decide
whether a criminal defendant testifies at trial is simply wrong. See Wain-
wright v. Sykes, supra, 433 U.S. 93 n.1 (Burger, C. J., concurring). Had
he communicated that misguided belief to the petitioner, we would be
constrained to decide that this was clear evidence of deficient performance.
As the state points out, however, there is no evidence in the record that
trial counsel did so. We also note that trial counsel acknowledged, upon
further questioning, that it was counsel’s responsibility to advise the client
of all issues and let the client make the ultimate decision on whether to
testify. The petitioner’s reliance on Commissioner of Correction v. Rodri-
quez, 222 Conn. 469, 475, 610 A.2d 631 (1992), is misplaced. In Rodriquez,
unlike the present case, the court concluded that the petitioner’s lawyer
‘‘ ‘directed him not to testify, essentially.’ ’’ Id.