Donald G. v. Commissioner of Correction ( 2021 )

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DONALD G. v. COMMISSIONER OF CORRECTION*
(AC 42713)
Prescott, Elgo and Pavia, Js.
Syllabus
The petitioner, who had been convicted of sexual assault in the first degree,
sexual assault in the third degree, and three counts of risk of injury to
a child, sought a writ of habeas corpus, claiming that his trial counsel
rendered ineffective assistance. The petitioner claimed, inter alia, that
counsel failed to present testimony from four witnesses, his mother,
his stepfather and two family friends, about his alleged presence or
absence from a December, 2007 holiday party at which certain of his
alleged criminal conduct occurred. Those same four witnesses testified
at his criminal trial that they had not seen him at a 2008 holiday party,
and the petitioner was acquitted of sexual assault charges stemming from
allegations regarding that date. The habeas court rendered judgment
denying the habeas petition, from which the petitioner, on the granting
of certification, appealed to this court. Held:
1. The habeas court properly determined that the petitioner failed to establish
his claim that trial counsel’s decision to refrain from questioning wit-
nesses regarding his attendance at an event on a certain date in 2007
constituted deficient performance; the petitioner presented no evidence
at the habeas trial that anyone except his parents would have attested
to his absence from the 2007 party, and trial counsel’s strategic decision
not to question the petitioner’s parents about his whereabouts at the
December, 2007 holiday party was not objectively unreasonable, as the
jury could have deemed them to be biased witnesses seeking to protect
their son, especially in light of contradictory evidence at the criminal
trial that the petitioner had told a police officer that he had been present
at the December, 2007 holiday party.
2. The habeas court properly determined that the petitioner failed to demon-
strate that he was prejudiced by any deficient performance of his trial
counsel in referring to the complaining witness as the ‘‘victim’’ or by
failing to object or to request a curative instruction regarding the prose-
cutor’s use of the same; although both the state and trial counsel inappro-
priately referred to the complainant as the victim, neither did so consis-
tently, and there was no support for the petitioner’s assertion that, but
for the use of the word victim, there was a reasonable likelihood that
the outcome of the trial would have been different, especially in light
of the fact that the petitioner was acquitted of one of the charges.
3. The habeas court properly determined that the petitioner’s trial counsel
did not render ineffective assistance by failing to investigate a claim of
uncharged misconduct between the petitioner and the victim; trial coun-
sel testified that the petitioner admitted to having attended a ski trip
where the uncharged misconduct was alleged to have occurred and,
thus, trial counsel’s decision not to pursue a witness who purportedly
would have testified that she did not see the petitioner on the ski trip
could not be deemed unreasonable or tactically unsound.
Argued October 13, 2020—officially released March 2, 2021
Procedural History
Amended petition for writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, Kwak, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Donald G., self-represented, the appellant (peti-
tioner).
Linda F. Currie-Zeffiro, senior assistant state’s attor-
ney, with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Angela Macchiarulo and Michael
Proto, senior assistant state’s attorneys, for the appel-
lee (respondent).
Opinion
PAVIA, J. Following the granting of certification to
appeal by the habeas court, the petitioner, Donald G.,
appeals from the judgment of the habeas court denying
his third amended petition for a writ of habeas corpus.
The petitioner claims that the habeas court improperly
rejected his claim that his right to effective assistance
of counsel had been violated because his trial counsel
(1) neglected to present testimony regarding the peti-
tioner’s whereabouts for one of the nights in question,
(2) referenced the complainant as the ‘‘victim’’ and
failed to object or to request a curative instruction when
the prosecutor also referred to the complainant as the
‘‘victim,’’ and (3) failed to investigate properly an inci-
dent of uncharged misconduct.1 We disagree and affirm
the judgment of the habeas court.
The petitioner was convicted of sexual assault in the
first degree, sexual assault in the third degree and three
counts of risk of injury to a child. The judgment of
conviction for those crimes was affirmed on direct
appeal by this court, and our Supreme Court denied
his subsequent petition for certification to appeal. See
State v. Donald H. G., 148 Conn. App. 398, 84 A.3d 1216,
cert. denied, 311 Conn. 951, 111 A.3d 881 (2014). The
following facts, as set forth by this court in State v.
Donald H. G., supra, 400–404, are relevant to the peti-
tioner’s appeal.
‘‘The minor victim, who was born in October, 1992,
is the niece of the [petitioner]. In the time period
between May and October, 2003, when the victim was
age ten or eleven, she, along with her sister and her
friend, went to the [petitioner’s] workplace to help him
paint the interior of the building. The victim went
upstairs to paint the office while her sister and her
friend remained downstairs. The [petitioner] entered
the office, where he kissed the victim, pulled down his
pants, and asked the victim to perform fellatio on him.
The victim complied, while the [petitioner], who was
standing against the wall, guided her head. Before he
ejaculated, the [petitioner] warned the victim and told
her to swallow it. The victim again complied. The [peti-
tioner] told the victim she was doing a ‘good job.’ The
[petitioner] then pulled down the victim’s shorts and
began to perform cunnilingus on her for a couple of
minutes, while looking to make sure no one was enter-
ing the room. The [petitioner] also penetrated the vic-
tim’s vagina with his tongue.
‘‘The [petitioner] later took the victim’s sister and the
victim’s friend home, but he returned to his workplace
with the victim where he continued to sexually assault
her by inserting his fingers into her vagina. The [peti-
tioner] told the victim that she was ‘grown up and
mature,’ and he convinced the victim that the sexual
assault was their secret. The [petitioner] also asked the
victim if she wanted to go to a movie theatre with him.
The victim pretended to telephone her mother because
she did not want to go with the [petitioner], and she
told the [petitioner] that her mother said she could not
go with him. On the basis of these facts, the state
charged the [petitioner] with one count of sexual assault
in the first degree and two counts of risk of injury to
a child.
‘‘On or about December 24, 2007, the victim’s family
had a Christmas party, which the [petitioner] and others
attended. During the party, the victim went into the
garage, which had an upstairs room with a bar, pool
table, television and bathroom, to get a beverage, during
which time she encountered the [petitioner]. When the
[petitioner] walked by the victim, he slapped her but-
tocks. ‘[F]lustered and annoyed,’ the victim retreated
to her bedroom, where the [petitioner] appeared shortly
thereafter. The [petitioner], who had been drinking but
did not appear intoxicated, asked the victim to kiss him
or to perform fellatio on him. The victim declined, but
the [petitioner] began to rub her back and squeeze her
buttocks. The [petitioner] also tried to convince the
victim to go for a ride with him, but she refused and
returned to the party. On the basis of these facts, the
state charged the [petitioner] with one count of sexual
assault in the third degree and one count of risk of
injury to a child.
‘‘On or about [December 22, 2008],2 the victim’s family
again was hosting a Christmas party, which the [peti-
tioner] and others attended. During the party, the victim
was watching television in the room above the garage,
when the [petitioner], who appeared to be intoxicated,
entered the room and asked the victim to make him a
cocktail. As she made the cocktail, the [petitioner] kept
trying to get close to the victim, but she kept moving
away. The victim was scared and just wanted the [peti-
tioner] to let her go. When she tried to exit the room,
the [petitioner], whom the victim described as a ‘really
big guy [who is] strong,’ pinned her against the wall
and began to run his hands down her body, kissing her
and grabbing her chest, while holding both of her hands
with one of his hands. The victim also testified that the
[petitioner] digitally penetrated her vagina during this
assault. The victim was afraid, especially because of
the [petitioner’s] size and the fact that she ‘was a
scrawny kid. . . .’ She ‘just . . . wanted help . . .
[and] didn’t want this to happen anymore.’ On the basis
of these facts, hereinafter referred to as the ‘2008 Christ-
mas party incident,’ the state charged the [petitioner]
with one count of sexual assault in the first degree.
‘‘On July 2, 2009, the victim, while staying with a
friend’s family due to a deterioration in her relationship
with her family, confided in her friend’s mother that
the [petitioner] repeatedly had sexually abused her. A
few days later, the friend’s mother drove the victim to
the police station to report the sexual abuse. The victim
made further disclosures to the police on August 27,
2009, and September 5, 2009.
‘‘The [petitioner] was arrested and charged, by way
of an amended information, with two counts of sexual
assault in the first degree, one count of sexual assault
in the third degree, and three counts of risk of injury
to a child. The jury found the [petitioner] guilty of all
charges with the exception of the count of sexual
assault in the first degree that stemmed from the
[December 22, 2008] Christmas party incident, for
which the jury returned a verdict of not guilty. The
court accepted the jury’s verdict, rendered judgment of
conviction on five counts, and imposed a total effective
sentence of thirty years [of] incarceration, ten years of
which were mandatory, followed by five years of parole
with special conditions, and lifetime registration as a
sexual offender.’’ (Footnote added.) Id., 400–403.
The petitioner appealed from the judgment of convic-
tion, which was affirmed by this court. Id., 400. There-
after, the petitioner filed a petition for a writ of habeas
corpus. The petitioner amended his petition three times
and filed his third amended petition on February 20,
2018. In his third amended petition for a writ of habeas
corpus, the petitioner asserted that his trial counsel,
Attorney Robert Lacobelle, provided ineffective assis-
tance. The following individuals who provided testi-
mony at the habeas trial included: Linda H., the petition-
er’s mother; Gary H., the petitioner’s stepfather; Theresa
Charette, a friend of the victim’s mother; Charles
Stango, a supervising assistant state’s attorney and
prosecutor at the underlying criminal trial; Daniel Mar-
kle, the private investigator that was retained by the
petitioner’s trial counsel; and the petitioner’s trial coun-
sel. Following the trial, the habeas court, Kwak, J.,
in a memorandum of decision, denied the petitioner’s
habeas petition. In doing so, the court concluded that
the petitioner had failed to demonstrate that his trial
counsel’s assistance was ineffective and found that trial
counsel’s use of different trial strategies for alternate
allegations was ‘‘highly reasonable and not indicative
of deficient performance.’’ The petitioner filed a petition
for certification to appeal, which the habeas court
granted. This appeal followed.
On appeal, the petitioner claims that the court
improperly failed to conclude that his trial counsel was
ineffective for (1) failing to present the testimony of
four witnesses regarding the petitioner’s whereabouts
on one of the nights in question, (2) improperly refer-
encing the complainant as the ‘‘victim’’ and failing to
object or to request a curative instruction when the
prosecutor did the same, and (3) failing to investigate
properly an incident of uncharged misconduct. We
disagree.
We begin by setting forth the applicable standard of
review and the law governing ineffective assistance of
counsel claims. ‘‘A criminal defendant is constitution-
ally entitled to adequate and effective assistance of
counsel at all critical stages of criminal proceedings.
. . . This right arises under the sixth and fourteenth
amendments to the United States constitution and arti-
cle first, § 8, of the Connecticut constitution. . . . It is
axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffec-
tive assistance of counsel consists of two components:
a performance prong and a prejudice prong. To satisfy
the performance prong . . . the petitioner must dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . To satisfy the prejudice prong,
[the petitioner] must demonstrate that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. . . . The claim will succeed only if both
prongs are satisfied.’’ (Citations omitted; internal quota-
tion marks omitted.) Gonzalez v. Commissioner of Cor-
rection, 308 Conn. 463, 470, 68 A.3d 624, cert. denied
sub nom. Dzurenda v. Gonzalez, 571 U.S. 1045, 134 S.
Ct. 639, 187 L. Ed. 2d 445 (2013); see also Bowens v.
Commissioner of Correction, 333 Conn. 502, 537–38,
217 A.3d 609 (2019).
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012).
I
The petitioner first claims that the court improperly
rejected his claim that his trial counsel rendered ineffec-
tive assistance by failing to question the petitioner’s
mother, stepfather, and two family friends regarding
the petitioner’s whereabouts at the time of the Decem-
ber 24, 2007 family Christmas party. We disagree.
The following additional facts are relevant to this
claim. The victim’s family held two separate Christmas
parties annually, one on December 22 for the neighbor-
hood (neighborhood party) and another on December
24 for immediate family and close friends (family party).
The petitioner was charged with sexual assault for his
alleged conduct at two of these Christmas parties: (1)
the 2008 neighborhood party; and (2) the 2007 family
party.
During the underlying criminal trial, the petitioner’s
mother and stepfather, Linda H. and Gary H., as well
as two family friends, testified that they had not seen
the petitioner at the 2008 neighborhood party. The peti-
tioner subsequently was acquitted of sexual assault in
the first degree stemming from the allegations regarding
that date. Trial counsel did not question these four
witnesses regarding the petitioner’s whereabouts on
the evening of the 2007 family party. He did, however,
question three of these four witnesses as to the petition-
er’s whereabouts during the 2007 neighborhood party,
despite the fact that no charges stemmed from that
date. The petitioner asserts that trial counsel rendered
constitutionally ineffective assistance because he failed
to question these four witnesses regarding his where-
abouts during the 2007 family party, and instead ques-
tioned them extensively about the 2007 neighborhood
party.
At the habeas trial, the petitioner presented testimony
from Linda H. and Gary H., both of whom stated that
the petitioner did not attend the 2007 family party, nor
any of the other parties in question. Notably, the peti-
tioner did not present testimony from the two family
friends, whom he claims should have been questioned
at his criminal trial regarding his whereabouts on the
day of the 2007 family party.3 The petitioner speculates
that the two family friends would have testified to his
absence at the 2007 family party but failed to provide
evidence at the habeas trial to support that contention.
In addition, the petitioner’s claim overlooks another
important aspect of the state’s case against him. Specifi-
cally, at the petitioner’s criminal trial, the state pre-
sented the testimony of Detective Steven Young, who
recounted the petitioner’s police interview and detailed
the petitioner’s admission that he had attended the 2007
family party. Young testified that the petitioner pro-
vided an intricate account of the evening and offered
an explanation for his allegedly accidental touching of
the victim’s buttocks, suggesting that he and the victim
had been wrestling together. Thus, the petitioner not
only acknowledged his presence at the 2007 family
party, but his statement to the police also squarely con-
tradicted the very testimony he now contends should
have been presented by his trial counsel.
At the habeas trial, the petitioner’s trial counsel testi-
fied that he decided not to question the four witnesses
regarding the 2007 family party following the petition-
er’s acknowledgment to a law enforcement official that
he had in fact attended the event. Trial counsel stated
that such questioning could have jeopardized the peti-
tioner’s defense. Specifically, he feared calling into
question the credibility of the witnesses who had testi-
fied to the petitioner’s absence from the 2008 neighbor-
hood party. Trial counsel testified that he sought to
discredit the victim’s account of events by highlighting
the inconsistencies between her testimony at trial and
the statements that she had provided to law enforce-
ment. Trial counsel also testified that he highlighted
the purported lapses made by law enforcement officials
while they investigated the victim’s allegations.
In its memorandum of decision, the habeas court
noted that, had trial counsel chosen to examine the four
proposed witnesses regarding the 2007 family party, it
would have served only to jeopardize the defense by
tarnishing the credibility of those much-needed wit-
nesses regarding the events of the 2008 neighborhood
party. Moreover, the court found that the petitioner had
failed to show that the testimony of the two family
friends would have helped with his defense. The court
additionally concluded that the testimony of Linda H.
and Gary H. regarding the evening of the 2007 family
party, as presented at the habeas hearing, left a period
of several hours during which no witnesses could
account for the whereabouts of the petitioner. This
temporal gap on the evening of the 2007 family party,
according to the court, would have allowed ample
opportunity for the petitioner to attend the party in
question unbeknownst to the witnesses.
In essence, the petitioner is claiming on appeal that
trial counsel’s decision not to have his mother and step-
father attest to his alleged absence from the 2007 family
party was objectively unreasonable; however, this
premise is untenable. The petitioner presented no evi-
dence at the habeas trial that anyone except for his
parents would have attested to his absence from the
2007 family party. We cannot say that trial counsel’s
decision not to question the petitioner’s parents about
the petitioner’s whereabouts during the 2007 family
party was objectively unreasonable because the jury
could have deemed them to be biased witnesses seeking
to protect their son, especially when the parents’
account would have been contradicted by the petition-
er’s own statements to law enforcement. A habeas peti-
tioner can demonstrate that a trial counsel’s decisions
were objectively unreasonable only if there was no tacti-
cal justification for the course of action pursued at
trial. See Meletrich v. Commissioner of Correction, 178
Conn. App. 266, 277–78, 174 A.3d 824 (2017), aff’d, 332
Conn. 615, 212 A.3d 678 (2019). ‘‘[T]he [petitioner] must
overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy.’’ (Internal quotation marks omit-
ted.) Anderson v. Commissioner of Correction, 201
Conn. App. 1, 12, 242A.3d. 107 (2020). As such, this
court is required to ‘‘make every effort 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.’’ (Internal quotation marks omitted.) Rivera v.
Commissioner of Correction, 70 Conn. App. 452, 456,
800 A.2d 1194, cert. denied, 261 Conn. 921, 806 A.2d
1061 (2002).
‘‘The failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ (Internal quotation marks omitted.) Jackson
v. Commissioner of Correction, 149 Conn. App. 681,
701, 89 A.3d 426 (2014), appeal dismissed, 321 Conn. 765,
138 A.3d 278, cert. denied sub nom. Jackson v. Semple,
U.S. , 137 S. Ct. 602, 196 L. Ed. 2d 482 (2016).
Additionally, ‘‘[w]here an alibi defense contains omis-
sions for crucial time periods, the alibi is insufficient,
and it is not deficient performance to fail to present
that defense.’’ Meletrich v. Commissioner of Correc-
tion, supra, 178 Conn. App. 279. In Jackson v. Commis-
sioner of Correction, supra, 698, a claim of ineffective
assistance of counsel was premised on counsel’s failure
to call several witnesses in support of an alibi defense.
In upholding the habeas court’s finding that counsel
had not rendered deficient performance, this court
ruled that if the testimony that counsel allegedly failed
to elicit would not have accounted for the petitioner’s
whereabouts between crucial points in time, immedi-
ately before, during and after the alleged criminal inci-
dent had occurred, the testimony would have been
unhelpful in establishing a complete alibi defense. Id.
Thus, we concluded that counsel’s failure to call wit-
nesses to provide such testimony was not deficient
performance. Id. Our cases instruct that ‘‘[s]trategic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchal-
lengeable . . . .’’ (Internal quotation marks omitted.)
Meletrich v. Commissioner of Correction, supra, 281.
‘‘[T]he ultimate focus of inquiry must be on the funda-
mental fairness of the proceeding whose result is being
challenged. . . . The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.’’ (Citation omitted; internal quo-
tation marks omitted.) Gaines v. Commissioner of Cor-
rection, supra, 306 Conn. 689. On the basis of the forego-
ing, the court properly concluded that the petitioner
failed to sustain his burden of overcoming the presump-
tion that counsel’s actions were the result of sound trial
strategy. We therefore conclude that the court properly
determined that the petitioner failed to establish his
claim that trial counsel’s decision to refrain from ques-
tioning witnesses regarding the petitioner’s where-
abouts on the evening of the 2007 family party consti-
tuted deficient performance.
II
The petitioner next claims that the court improperly
determined that he had failed to sustain his burden of
proving that he was prejudiced by references to the
complaining witness as the ‘‘victim’’ by his counsel and
the state during his criminal trial. We disagree.
The following additional facts are relevant to our
review of this claim. Prior to the commencement of
trial, the petitioner’s trial counsel filed a motion with
the court to prohibit the use of the word ‘‘victim’’ by
either party. The court granted the motion in limine
and cautioned all parties to refrain from addressing the
complainant as the ‘‘victim.’’ During the course of the
trial, however, both the prosecutor and the petitioner’s
trial counsel sporadically used the word ‘‘victim’’ when
referencing the complainant in the presence of the jury.
The prosecutor referred to the complainant as the ‘‘vic-
tim’’ on six occasions and trial counsel did so twice.
Trial counsel did not object to the prosecutor’s violation
of the court order or request a curative instruction from
the court.
In State v. Cortes, 276 Conn. 241, 249 n.4, 885 A.2d
153 (2005), our Supreme Court held that the trial court’s
reference to the complainant as the ‘‘victim’’ was inap-
propriate, as it implicitly suggested that the complain-
ant had in fact been victimized by the defendant. Id.
Later, in State v. Warholic, 278 Conn. 354, 369–70, 897
A.2d 569 (2006), the Supreme Court expanded its ruling
in Cortes by cautioning ‘‘the state . . . against making
excessive use of the term ‘victim’ to describe a com-
plainant when the commission of a crime is at issue
because prevalent use of the term may cause the jury
to draw an improper inference that the defendant com-
mitted a crime against the complainant.’’ (Emphasis
added.) Id., 370 n.7. Although the court in Warholic
concluded that the prosecutor’s use of the word ‘‘vic-
tim’’ during closing argument did not amount to prose-
cutorial impropriety because the jury was likely to
understand that the state’s terminology was simply a
reflection of the state’s contention concerning the alle-
gations proffered at the trial, the court clearly admon-
ished the use of such terminology. Id., 370 and n.7; see
also State v. Williams, 200 Conn. App. 427, 435, 238
A.3d 797 (prosecutor’s relatively infrequent use of term
‘‘victim’’ did not constitute impropriety), cert. denied,
335 Conn. 974, 240 A.3d 676 (2020); State v. Kurrus,
137 Conn. App. 604, 621, 49 A.3d 260 (prosecutor’s refer-
ence to complainant as ‘‘victim’’ on three occasions did
not unduly influence jurors), cert. denied, 307 Conn.
923, 55 A.3d 566 (2012); State v. Rodriguez, 107 Conn.
App. 685, 703, 946 A.2d 294 (prosecutor’s sporadic use
of term ‘‘victim’’ did not amount to impropriety), cert.
denied, 288 Conn. 904, 953 A.2d 650 (2008). Thus, where
the courts have deemed such behavior to be prevalent
and chronic, they have determined that such references
have invaded the propriety of the trial proceeding. See
State v. Thompson, 146 Conn. App. 249, 271, 76 A.3d
273 (state’s use of word ‘‘victim’’ on seven occasions
necessitating repeated court intervention was inappro-
priate), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013);
State v. Albino, 130 Conn. App. 745, 762, 24 A.3d 602
(in cases where there is challenge as to whether crime
occurred, repeated use of word ‘‘victim’’ is improper),
aff’d, 312 Conn. 763, 97 A.3d 478 (2014).
Although the foregoing principles guide our review,
the present case encompasses the complicating fact
that, in addition to the state’s use of the term ‘‘victim,’’
the petitioner’s trial counsel also referred to the com-
plainant as the ‘‘victim.’’ Although trial counsel appro-
priately sought a court order preventing such references
and, although the majority of the time the complainant
was referred to by her initials, as the trial progressed
there were admitted transgressions, including by trial
counsel. He represented that such references were
unintentional but conceded that he neither objected
to the state’s use of the term nor requested curative
instructions from the court.
As previously noted in this opinion, Gonzalez is clear
that there are two prongs, performance and prejudice,
to an analysis of an ineffective assistance of counsel
claim. Gonzalez v. Commissioner of Correction, supra,
308 Conn. 470. ‘‘It is well settled that [a] reviewing
court can find against a petitioner on either ground,
whichever is easier.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Small v. Commissioner of Correc-
tion, 286 Conn. 707, 713, 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); see also Sanchez v. Commis-
sioner of Correction, 314 Conn. 585, 606, 103 A.3d 954
(2014). Thus, ‘‘[a]lthough a petitioner can succeed only
if he satisfies both prongs, a reviewing court can find
against a petitioner on either ground.’’ Breton v. Com-
missioner of Correction, 325 Conn. 640, 669, 159 A.3d
1112 (2017). As such, case law permits us to affirm a
habeas court’s decision on prejudice without examining
the deficiency prong. Id.
In the present case, although both the state and trial
counsel inappropriately referred to the complainant as
the victim, neither did so consistently. Both parties
predominately identified the witness either as the com-
plainant or by use of her initials. There is simply no
support for the petitioner’s assertion that, but for trial
counsel’s use of the word ‘‘victim’’ on two occasions
throughout the entirety of the trial proceeding, or his
failure to object or to request a curative instruction after
the prosecutor made similar references, it is reasonably
likely that the outcome of the trial would have been
different. This conclusion is buttressed by the fact that
the petitioner in fact was acquitted of one of the charges
against him. If the jury had been improperly influenced
by these references to the victim, presumably it would
not have acquitted the petitioner of one of the charges.
‘‘To satisfy the prejudice prong, a claimant must dem-
onstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’’ (Internal quota-
tion marks omitted.) Meletrich v. Commissioner of Cor-
rection, 332 Conn. 615, 626–27, 212 A.3d 678 (2019);
see also Johnson v. Commissioner of Correction, 330
Conn. 520, 538, 198 A.3d 52 (2019). ‘‘A reasonable proba-
bility is a probability sufficient to undermine confidence
in the outcome.’’ (Internal quotation marks omitted.)
Lapointe v. Commissioner of Correction, 316 Conn.
225, 265, 112 A.3d 1 (2015). The critical question is
‘‘whether there is a reasonable probability that, absent
the [deficient performance of counsel], the [fact-finder]
would have had a reasonable doubt’’ concerning the
petitioner’s guilt. (Internal quotation marks omitted.)
White v. Commissioner of Correction, 145 Conn. App.
834, 842, 77 A.3d 832, cert. denied, 310 Conn. 947, 80
A.3d 906 (2013).
After a thorough review of the entire record, we are
not persuaded that the habeas court improperly con-
cluded that the petitioner failed to demonstrate that he
was prejudiced by any deficient performance of his trial
counsel relating to references to the complainant as
the victim because, as noted previously in this opinion,
the petitioner was acquitted of one of the charges
against him. Accordingly, this claim fails.
III
Finally, the petitioner claims that the court improp-
erly determined that his trial counsel did not render
ineffective assistance by failing to investigate a claim
of uncharged misconduct between the petitioner and
the victim. We disagree.
The following additional facts are relevant to this
claim. During the criminal trial and over trial counsel’s
objection, the state introduced misconduct evidence of
additional sexual contact between the petitioner and
the victim during a family ski trip at Okemo Mountain.
In light of that evidence, the petitioner claims that
trial counsel rendered ineffective assistance by neglect-
ing to interview and to procure the testimony of an
alleged witness, Theresa Charette, who claimed that
she had not seen the petitioner during the Okemo ski
trip. The petitioner argues that, if called to testify, Cha-
rette would have so undermined the credibility of the
victim’s account of this event that the entirety of her
trial testimony would have been irreparably tainted in
the eyes of the jury.
During the habeas trial, however, trial counsel testi-
fied that the petitioner had admitted to him that he had
attended the Okemo ski trip. That admission stands in
firm opposition to the very testimony that the petitioner
now claims trial counsel failed to investigate and to
present at trial. As previously noted in this opinion,
‘‘[t]he failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ (Internal quotation marks omitted.) Jackson
v. Commissioner of Correction, supra, 149 Conn. App.
701. Furthermore, ‘‘[d]efense counsel will be deemed
ineffective only when it is shown that a defendant has
informed his attorney of the existence of the witness
and that the attorney, without a reasonable investiga-
tion and without adequate explanation, failed to call
the witness at trial.’’ (Internal quotation marks omitted.)
Meletrich v. Commissioner of Correction, supra, 178
Conn App. 278–79. The decision of the petitioner’s trial
counsel not to pursue testimony from a witness in an
effort to rebut a claim that the petitioner had readily
admitted as true cannot be deemed unreasonable or
tactically unsound. We, therefore, conclude that the
court properly rejected the petitioner’s claim that his
trial counsel’s performance was constitutionally defi-
cient as it related to the uncharged misconduct admitted
against him.
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 assault and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-
86e.
1
On appeal, the petitioner does not claim, as he did in the habeas court,
that his counsel had a conflict of interest.
2
The state’s third amended information alleged that the second incident
actually occurred at a Christmas party held on December 22, 2008, not
December 24, 2008.
3
The only testimony that the two family friends provided at the criminal
trial was in reference to the neighborhood parties in 2007 and 2008.