Santos v. Commissioner of Correction

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APPENDIX
ALEXIS SANTOS v. COMMISSIONER
OF CORRECTION*
Superior Court, Judicial District of Tolland
File No. CV-XX-XXXXXXX-S
Memorandum filed April 5, 2017
Proceedings
Memorandum of decision after completed habeas
corpus trial to court. Judgment for respondent.
James E. Mortimer, assigned counsel, for the peti-
tioner.
Eva B. Lenczewski, supervisory assistant state’s
attorney, for the respondent.
Opinion
OLIVER, J. The petitioner, Alexis Santos, brings this
petition for a writ of habeas corpus, claiming that his
criminal defense attorney provided him ineffective
assistance in violation of the state and federal constitu-
tions, and seeking to have his convictions vacated. Spe-
cifically, the petitioner claims, in his amended petition
filed July 22, 2016, that his right to effective legal repre-
sentation was denied in that his counsel, Attorney Tas-
hun Bowden-Lewis, committed a number of errors at
trial.
The petitioner claims that his right to effective legal
representation at trial was denied in that his underlying
trial counsel was constitutionally deficient in the follow-
ing ways:
a. She did not retain, consult with and present the
testimony of a mental health professional with an exper-
tise in investigating and evaluating child sexual abuse
allegations in order to:
1. Call into question the reliability of victim M.H.’s dis-
closures;
2. Call into question the reliability of victim Y.H.’s dis-
closure;
3. Rebut the testimony of prosecution witness The-
resa Montelli concerning ‘‘common characteristics and
behaviors’’ of sexually abused children;
4. Rebut the testimony of prosecution expert witness
Theresa Montelli concerning the statistical probabilities
of children and recantation;
5. Provide a consultation source to counsel so as to
avoid eliciting damaging information on cross-examina-
tion concerning recantations;
6. Provide an alternative innocent explanation for
false allegations; and
7. Rebut the credibility of the forensic interviewer
re: failing to explore alternative innocent explanations.
b. She failed to adequately cross-examine, impeach
and otherwise challenge the testimony of the victim
M.H., concerning her motive, interest and bias against
the petitioner;
c. She failed to adequately object to the introduction
of M.H.’s forensic interview based on hearsay grounds;
d. She failed to adequately challenge the testimony
of Y.H. concerning her motive, interest and bias against
the petitioner;
e. She failed to adequately object to the introduction
of Theresa Montelli’s expert testimony;
f. She failed to adequately object, based on relevancy,
to the testimony of Theresa Montelli concerning com-
mon characteristics and behaviors of sexually abused
children;
g. She failed to adequately challenge the testimony
of Theresa Montelli concerning her knowledge of statis-
tical data in the field of child sexual abuse;
h. She failed to adequately challenge the testimony
of O.S., the mother of the complaining witnesses;
i. She failed to investigate and introduce evidence of
the petitioner’s work history to challenge the victims’
testimony as well as to challenge the notion of the
petitioner’s access to the victims;
j. She failed to properly object to prosecution witness
Donna Meyer’s testimony characterizing M.H.’s testi-
mony as credible;
k. She failed to call Daisy Cruz as a witness in the
defense case-in-chief;
l. She failed to call Claribel Santos, Carlos Santos and
Tanya Wilcher–Lombardo as witnesses in the defense
case-in-chief to challenge:
1. The victims’ testimony re: exterior door locks on
their bedroom doors;
2. The petitioner’s access to the victims;
3. O.S.’s testimony re: her work history; and
4. The time frame during which the petitioner resided
with the victims; and
m. She failed to present the trial court with supporting
information as to the unavailability of Daisy Cruz so as
to cause the trial court to allow the testimony of Ms.
Cruz by either videoconference or deposition.
The respondent, the Commissioner of Correction,
denies the allegations. The court heard the trial of this
matter on the merits on September 13, October 24 and
December 21, 2016. The petitioner called eight wit-
nesses: himself, Attorney Bowden-Lewis, Tanya Lom-
bardo, Jeffrey Cianciolo, Claribel Santos, Dayanara
Santos, expert mental health witness David Mantell and
expert legal witness Kenneth Simon. Despite repeated
diligent attempts, the petitioner was unable to secure
the testimony of Daisy Cruz. The petitioner entered into
evidence a number of exhibits. The respondent called
no witnesses and offered three exhibits. Based upon
the credible evidence presented, the court finds the
issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY
On September 24, 2012, in the Waterbury judicial
district, in the matter of State v. Santos, Docket No.
CR-11-401131, following a jury trial, the petitioner was
convicted of four counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),
four counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2) and one count of risk
of injury to a child in violation of § 53-21 (a) (1). In
docket number CR-11-402391, the petitioner was con-
victed of one count of sexual assault in the first degree,
one count of risk of injury to a child in violation of
§ 53-21 (a) (2), one count of risk of injury to a child in
violation of § 53-21 (a) (1) and one count of sexual
assault in the fourth degree in violation of General Stat-
utes § 53a-73a (a) (1) (A). On November 30, 2012, the
trial court, Crawford, J., sentenced the petitioner to a
total effective term of twenty years of incarceration
followed by twenty years of special parole.
The petitioner appealed from the underlying criminal
judgment, and on March 24, 2014, the Appellate Court
affirmed the conviction per curiam. State v. Santos, 148
Conn. App. 907, 86 A.3d 1099, cert. denied, 311 Conn.
944, 89 A.3d 351 (2014). On February 7, 2014, the peti-
tioner initiated this matter by the filing of his petition
for a writ of habeas corpus. The petitioner was assisted
at trial by a Spanish language interpreter.
The allegations against the petitioner by victim M.H.
include sexual contact by digital penetration on one
occasion as well as nonsexual physical abuse. The alle-
gations against the petitioner by Y.H. include repeated
penile-vaginal, penile-anal and penile-oral sexual abuse.
II
LAW/DISCUSSION
A
Civil Matters—Generally
Standard of Proof
The standard of proof in civil actions, a fair prepon-
derance of the evidence, is ‘‘properly defined as the
better evidence, the evidence having the greater weight,
the more convincing force in your mind.’’ (Internal quo-
tation marks omitted.) Cross v. Huttenlocher, 185 Conn.
390, 394, 440 A.2d 952 (1981).
Burden of Proof
While the ‘‘plaintiff is entitled to every favorable infer-
ence that may be legitimately drawn from the evidence;
and a party has the same right to submit a weak case
as he has to submit a strong one . . . the plaintiff [must
still sustain] his burden of proof on the contested issues
of his complaint,’’ and the defendant need not present
any evidence to contradict it.’’ (Citations omitted.)
Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949
(1981). The general burden of proof in civil actions is
on the plaintiff, who must prove all the essential ele-
ments of the cause of action by a fair preponderance
of the evidence. Gulycz v. Stop & Shop Cos., 29 Conn.
App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn.
923, 618 A.2d 527 (1982). Failure to do so results in
judgment for the defendant. Id.
Proceedings
‘‘The [fact-finding] function is vested in the trial court
with its unique opportunity to view the evidence pre-
sented in a totality of the circumstances, i.e., including
its observations of the demeanor and conduct of the
witnesses and parties . . . .’’ (Internal quotation marks
omitted.) Cavolick v. DeSimone, 88 Conn. App. 638,
646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876
A.2d 1198 (2005). ‘‘It is well established that in cases
tried before courts, trial judges are the sole arbiters of
the credibility of witnesses and it is they who determine
the weight to be given specific testimony. . . . It is the
quintessential function of the fact finder to reject or
accept certain evidence . . . .’’ (Internal quotation
marks omitted.) In re Antonio M., 56 Conn. App. 534,
540, 744 A.2d 915 (2000). ‘‘The sifting and weighing of
evidence is peculiarly the function of the trier [of fact].’’
Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).
‘‘[N]othing in our law is more elementary than that the
trier [of fact] is the final judge of the credibility of
witnesses and of the weight to be accorded [to] the
testimony.’’ (Internal quotation marks omitted.) Toffo-
lon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977).
‘‘The trier is free to accept or reject, in whole or in part,
the testimony offered by either party.’’ Smith v. Smith,
supra, 123. ‘‘The determination of credibility is a func-
tion of the trial court.’’ Heritage Square, LLC v. Eoanou,
61 Conn. App. 329, 333, 764 A.2d 199 (2001).
Credibility
It is well established that ‘‘[i]t is within the province
of the trial court, when sitting as the fact finder, to
weigh the evidence presented and determine the credi-
bility and effect to be given the evidence. . . . Credibil-
ity must be assessed . . . not by reading the cold
printed record, but by observing firsthand the witness’
conduct, demeanor and attitude. . . . An appellate
court must defer to the trier of fact’s assessment of
credibility because [i]t is the [fact finder] . . . [who
has] an opportunity to observe the demeanor of the
witnesses and the parties; thus [the fact finder] is best
able to judge the credibility of the witnesses and to
draw necessary inferences therefrom.’’ (Internal quota-
tion marks omitted.) State v. Lawrence, 282 Conn. 141,
155, 920 A.2d 236 (2007); see also Dadio v. Dadio, 123
Conn. 88, 92–93, 192 A. 557 (1937). Such observation
may include all genuine and spontaneous reactions of
the witness in the courtroom, whether or not on the
witness stand, but only to the extent that they bear on
the witness’ credibility. State v. McLaughlin, 126 Conn.
257, 264–65, 10 A.2d 758 (1939). It is generally inappro-
priate for the trier of fact to assess the witness’ credibil-
ity without having watched the witness testify under
oath. Shelton v. Statewide Grievance Committee, 277
Conn. 99, 111, 890 A.2d 104 (2006).
B
Habeas Corpus Matters
‘‘The right to petition for a writ of habeas corpus is
enshrined in both the United States constitution and
the Connecticut constitution. See U.S. Const., art. I, § 9;
Conn. Const., art. I, § 12. Indeed, it has been observed
that the writ of habeas corpus holds an honored position
in our jurisprudence. . . . The principal purpose of the
writ of habeas corpus is to serve as a bulwark against
convictions that violate fundamental fairness. . . . The
writ has been described as a unique and extraordinary
legal remedy. . . . It must never be forgotten that the
writ of habeas corpus is the precious safeguard of per-
sonal liberty and there is no higher duty than to maintain
it unimpaired.’’ (Citations omitted; internal quotation
marks omitted.) Fine v. Commissioner of Correction,
147 Conn. App. 136, 142–43, 81 A.3d 1209 (2013).
‘‘A criminal defendant’s right to the effective assis-
tance of counsel . . . is guaranteed by the sixth and
fourteenth amendments to the United States constitu-
tion and by article first, § 8, of the Connecticut constitu-
tion. . . . To succeed on a claim of ineffective
assistance of counsel, a habeas petitioner must satisfy
the two-pronged test articulated in Strickland v. Wash-
ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).’’ (Citations omitted.) Small v. Commissioner of
Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008). The petitioner has the
burden to establish that ‘‘(1) counsel’s representation
fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.’’
(Emphasis in original.) Johnson v. Commissioner of
Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008),
citing Strickland v. Washington, supra, 694. ‘‘A reason-
able probability is one which is sufficient to undermine
confidence in the result.’’ (Internal quotation marks
omitted.) Vasquez v. Commissioner of Correction, 111
Conn. App. 282, 286, 959 A.2d 10, cert. denied, 289 Conn.
958, 961 A.2d 424 (2008).
‘‘To satisfy the performance prong, a claimant must
demonstrate that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed
. . . by the [s]ixth [a]mendment.’’ (Internal quotation
marks omitted.) Ledbetter v. Commissioner of Correc-
tion, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006), quoting Strickland
v. Washington, supra, 466 U.S. 687. It is not enough for
the petitioner to simply prove the underlying facts that
show that his attorney failed to take a certain action.
Rather, the petitioner must prove, by a preponderance
of the evidence, that his counsel’s acts or omissions
were so serious that counsel was not functioning as
the ‘‘counsel’’ guaranteed by the sixth amendment, and
as a result, he was deprived of a fair trial. Harris v.
Commissioner of Correction, 107 Conn. App. 833, 845–
46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d
652 (2008).
Under the second prong of the test, the prejudice
prong, the petitioner must show that ‘‘counsel’s errors
were so serious as to deprive the [petitioner] of a fair
trial, a trial whose result is reliable.’’ (Internal quotation
marks omitted.) Michael T. v. Commissioner of Correc-
tion, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel’s performance, the
habeas court is required to ‘‘indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance . . . .’’ (Internal
quotation marks omitted.) Strickland v. Washington,
supra, 466 U.S. 689. The United States Supreme Court
explained: ‘‘A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances 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
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered 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.’’ (Citation
omitted; internal quotation marks omitted.) Id.
‘‘In Strickland, the United States Supreme Court held
that [j]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a [peti-
tioner] to second-guess counsel’s assistance after con-
viction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . [C]ounsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment.’’ Martin v. Com-
missioner of Correction, 155 Conn. App. 223, 227, 108
A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885
(2015).
Ultimately, ‘‘[t]he 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.’’ Strickland v. Washington,
supra, 466 U.S. 686.
Evidence and Examination of Witnesses
‘‘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
strategy.’’ (Internal quotation marks omitted.) Velasco
v. Commissioner of Correction, 119 Conn. App. 164,
172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d
1289 (2010). Similarly, ‘‘the presentation of testimonial
evidence is a matter of trial strategy . . . .’’ (Citation
omitted; internal quotation marks omitted.) Bowens v.
Commissioner of Correction, 104 Conn. App. 738, 744,
936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944
A.2d 978 (2008).
‘‘The fact that counsel arguably could have inquired
more deeply into certain areas, or failed to inquire at
all into areas of claimed importance, falls short of estab-
lishing deficient performance.’’ Velasco v. Commis-
sioner of Correction, supra, 119 Conn. App. 172.
Pretrial Investigation
‘‘The reasonableness of an investigation must be eval-
uated not through hindsight but from the perspective
of the attorney when [s]he was conducting it. . . . The
burden to demonstrate what benefit additional investi-
gation would have revealed is on the petitioner.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Norton v. Commissioner of Correction, 132 Conn. App.
850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936,
36 A.3d 695 (2012).
Retaining an Expert
The Appellate Court has recently reiterated ‘‘that
there is no per se rule that requires a trial attorney to
seek out an expert witness.’’ Stephen S. v. Commis-
sioner of Correction, 134 Conn. App. 801, 811, 40 A.3d
796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).
‘‘In Peruccio v. Commissioner of Correction, 107 Conn.
App. 66, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951
A.2d 569 (2008), however, [the Appellate Court] noted
that in some cases, ‘the failure to use any expert can
result in a determination that a criminal defendant was
denied the effective assistance of counsel.’ Id., 76.’’ Ste-
phen S. v. Commissioner of Correction, supra, 811.
However, the decision not to call any witness, including
an expert 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.) Eastwood
v. Commissioner of Correction, 114 Conn. App. 471,
481, 969 A.2d 860, cert. denied, 292 Conn. 918, 973 A.2d
1275 (2009); see also Harris v. Commissioner of Cor-
rection, 134 Conn. App. 44, 57–58, 37 A.3d 802 (failure
to call expert regarding a child’s competency to testify
not error where no evidence expert testimony would
have weakened the child’s testimony), cert. denied, 304
Conn. 919, 41 A.3d 306 (2012).
1
Attorney Tashun Bowden-Lewis
Attorney Bowden-Lewis testified to her training and
experience as a criminal defense attorney in the state
of Connecticut, including her continuing annual and
semiannual training in defending against criminal sex-
ual abuse allegations. Specifically, counsel testified to
‘‘many different trainings’’ at the Office of the Public
Defender, including protocols, forensic interviews and
expert witnesses. She further testified to prior represen-
tation of defendants accused of similar offenses with
multiple victims. The court found Ms. Bowden-Lewis
to be a credible witness, both in terms of her manner
of testifying as well as the substance of her testimony
and its factual foundation. Counsel testified to having
received all discovery in the case, including witness
statements. She further testified to utilizing the services
of Tony Smith, the public defender’s office investigator
to perform several tasks, including interviewing poten-
tial witnesses Daisy Cruz, Tanya Lombardo and Carlos,
Claribel and Dayanara Santos. Underlying counsel also
interviewed a number of these witnesses. Counsel testi-
fied to unsuccessful attempts to speak with the victims
and their mother.
Counsel interviewed Daisy Cruz, who was willing to
testify. Ms. Cruz did not believe the allegations of sexual
assault; however, she disclosed to underlying counsel
that the petitioner sexually assaulted her when she was
six years old. Counsel could not recall whether Ms.
Cruz told her she overheard Y.H. recant the allegations
against the petitioner; however, counsel did testify that
she considered Ms. Cruz to be a ‘‘crucial’’ defense wit-
ness and told her as much. Despite accurately describ-
ing calling Daisy Cruz as a defense witness as ‘‘risky,’’
underlying counsel and the petitioner made great efforts
to have her testify at trial.
Shortly after the witness interview, Ms. Cruz relo-
cated to Florida. Prior thereto, counsel served Ms. Cruz
with a subpoena and asked her to remain in Connecticut
to testify at trial. After Ms. Cruz left Connecticut, Attor-
ney Bowden-Lewis testified, she stayed in ‘‘constant
contact’’ with the witness through e-mail and had plans
to fly Ms. Cruz and her children back to Connecticut
so that she could testify.
Counsel testified that Ms. Cruz informed her that a
‘‘high-risk pregnancy’’ prevented her from traveling to
Connecticut to testify at trial. Counsel testified to hav-
ing arranged for the testimony of Ms. Cruz by audiovi-
sual device from Florida and filing a motion to present
that testimony with the trial court. The motion was
denied.
Counsel testified to reviewing the evidence with the
testified to viewing the forensic interview of M.H. Coun-
sel discussed with the petitioner additional information
regarding M.H., including her sexual activity with a boy-
friend. The petitioner had no difficulties understanding
counsel during their meetings, even without an inter-
preter.
Counsel described the theory of defense as
‘‘attack[ing] the elements of the crime.’’ In that regard,
the defense called as witnesses the petitioner and his
wife. Counsel further anticipated cross-examination of
the victims. Counsel made the strategic decision, after
interviewing them, not to call the petitioner’s family
members as witnesses as they had ‘‘nothing concrete
to add’’ to the defense case. Specifically as to Tanya
Lombardo, counsel testified to the strategic decision
not to call Tanya Lombardo as a witness, as she had no
‘‘relevant’’ or ‘‘material’’ information to aid the defense
case. As to Claribel Santos, counsel testified that she
did not call her as a trial witness, as the only information
Ms. Santos had to contribute was that she did not
believe the allegations. This is not the type of evidence
that would be relevant at trial. Counsel recognized that
the case would hinge on witness credibility based on
the lack of physical evidence.
Attorney Bowden-Lewis testified credibly to having
consulted in the past with mental health professionals
with an expertise in child sexual abuse issues. Counsel
testified that she did not consult an expert in the under-
lying matter based on her prior trial experience, consul-
tations and familiarity with the prosecution’s expert
witness, Theresa Montelli, from prior cases. Counsel
testified credibly that she reviewed a transcript of the
state’s expert witness’ trial testimony. As to Ms. Mon-
telli, counsel testified credibly to a strategic decision
not to object to her ‘‘general testimony,’’ as it only
applied broadly to the case. She further testified that
Ms. Montelli’s statistical testimony as to recantation
rates comported with her own understanding derived
from independent research. As to Donna Meyer, counsel
testified that she did not feel that Ms. Meyer’s testimony
was improper ‘‘bolstering’’ of M.H., otherwise she would
have objected. Counsel further testified to familiarity
with the protocols of a forensic interview and saw noth-
ing suggestive or coercive in the video interview.
Regarding the entry of the forensic interview into
evidence, counsel testified credibly to the strategic deci-
sion to allow the entire video into evidence, as M.H.,
in the video, brought out evidence that she felt would
be helpful to the defense, specifically an alternative
source of sexual knowledge and actual prior sexual
activity with her boyfriend. Counsel testified credibly
and realistically that, although she did not want the
entire forensic video entered into evidence, there did
not exist the option to ‘‘pick and choose bits and pieces’’
of the video to enter into evidence. Counsel testified
to balancing the damaging evidence in the video with
the evidence favorable to the defense. The record shows
that M.H. had to acknowledge lying to the jury in prior
testimony when she was recalled to the witness stand.
As to other potential areas of cross-examination of
M.H., counsel testified to wanting to cross-examine sex-
ual assault victims on the ‘‘root’’ of the sexual assault
case only, and not ‘‘frivolous’’ issues, as challenging
a witness on every conceivable inconsistency could
diminish the defense case and distract from the larger
inconsistencies. Additionally, counsel testified to a stra-
tegic decision not to cross-examine M.H. on her hospi-
talization and suicide attempt, as it is ‘‘very risky,’’ and
could ‘‘elicit sympathy’’ from the jury. Counsel testified
credibly and accurately that a less vigorous, ‘‘delicate’’
examination of child/teen sexual assault victims is often
necessary, as it could alienate the jury.
Regarding the petitioner’s ‘‘work history,’’ counsel
testified credibly that the petitioner described to her
his work history during the relevant time period as
working ‘‘under the table’’ and working ‘‘inconsis-
tently.’’ Counsel further testified that, although the peti-
tioner’s wife brought her some documents associated
with the petitioner’s work history, the petitioner pro-
vided no documentation to support a claim of consis-
tent, full-time work during the relevant time period.
Regardless, counsel testified, that, as the petitioner
lived in the home with the victims and the prosecuting
authority asserted broad divers dates as to the crimes,
it was ‘‘tough to pin down’’ or alibi a time frame to
dispute the petitioner’s access to the victims. Counsel
testified to relying on the petitioner’s trial testimony in
support of his denials and claimed lack of access due
to a busy work schedule.
2
Tanya Lombardo
Ms. Lombardo, the petitioner’s niece, testified for
the petitioner. Admittedly, Ms. Lombardo testified that
when she spoke to underlying counsel in a telephone
interview from Georgia, she told counsel that she
‘‘didn’t really know much’’ about the case. Though gen-
erally credible, she had no independent knowledge
about the case and had no information that this court
finds would affect the jury’s assessment of the elements
of the several charges in the two cases or impact the
credibility of the prosecution witnesses. For example,
she had no information as to the victims’ upset after
the petitioner moved out of the home and no informa-
tion, other than simply not believing the allegations,
which might persuade a fact finder. Ms. Lombardo testi-
fied that she never saw exterior chain locks on the
victims’ bedroom doors.
3
Jeffrey Cianciolo
Mr. Cianciolo, who owned a painting company, was
the petitioner’s employer for a number of years, from
approximately spring of 2004 or 2005 through 2009. The
witness could not quite specify the years of employ-
ment, resulting in a three- to five-year employment
range. The witness testified that the petitioner worked
‘‘full-time’’ hours with the exception of the ‘‘slow’’ win-
ter months and a ‘‘really slow’’ period in 2007–2008. Mr.
Cianciolo, who has a 2010 felony conviction, testified
that he has no employment records available for the
years 2004–2008. He further testified that he has had
no access to the potentially relevant records since 2010.
As to the year 2004, Mr. Cianciolo can only say that the
petitioner worked for him for approximately four to
five years and that he had no recollection of the precise
years of the petitioner’s employment. The witness
brought no documents with him, and the petitioner
offered no employment records during the habeas trial.
Mr. Cianciolo, as the best witness presented at the
habeas trial in support of a defense theory of limited
access to the victims, presented loose and unconvincing
testimony for the petitioner. The evidence on this sub-
ject was not sufficiently bolstered by either Claribel
Santos or Tanya Lombardo. This court finds that the
petitioner has failed to establish the existence of con-
vincing evidence to disprove consistent and sufficient
access to perpetrate these sexual assaults over the
course of years.
4
Claribel Santos
Claribel Santos, the petitioner’s sister, testified at the
habeas trial. She testified to being interviewed by under-
lying counsel and being told that she would not testify,
as her testimony was not especially helpful. Ms. Santos
testified that she saw no chain locks on the victims’
bedroom doors. Much like Tanya Lombardo, Claribel
Santos had no information that this court finds would
have been especially probative of either the credibility
of the state’s witnesses or the elements of the several
offenses. Ms. Santos had general information on the
petitioner’s work schedule, but also potentially harmful
information on domestic violence between the victims’
mother and the petitioner.
5
Dayanara Santos
The petitioner’s wife, Dayanara Santos, testified at
the habeas trial. She testified to having contact with
underlying counsel throughout the course of the litiga-
tion. She testified to providing certain work-related doc-
umentation to counsel as well as information about
alleged threats to the petitioner from the victims’
mother. She also claims to have been made aware of
the specific allegations against the petitioner by being
with copies of witness statements by the petitioner. She
further testified in a somewhat contradictory fashion
that she was not made aware of the details of the allega-
tions until after trial. Mrs. Santos failed to provide this
court with relevant or probative information as to the
claims asserted in the petition.
6
Petitioner
The petitioner testified at the habeas trial. He testified
that there was nothing unusual in his most recent prear-
rest contacts with the victims or their mother. He testi-
fied that, postarrest, he was made aware of the claims
against him by reviewing the victims’ statements with
underlying counsel. He was also made aware of the
content of M.H.’s forensic interview, as he was provided
a transcript by counsel. The petitioner testified to
appropriate preparation, interaction and discussion
with Attorney Bowden-Lewis, including reviewing
potential trial witnesses.
Unlike Tanya Lombardo and Claribel Santos, the peti-
tioner, who lived in the home, testified that he installed
chain locks on the exterior of the victims’ bedroom
doors, although he testified that he did so on ‘‘orders’’
from the victims’ mother. The petitioner testified that
the chain locks were on the doors for only two days
as part of a pattern of abuse (described by the petitioner
as ‘‘spankings’’) visited upon the victims and him by
their mother. The petitioner positioned himself as the
victims’ protector in this regard.
Based on the whole of his habeas trial testimony, the
petitioner failed to demonstrate a clear recollection
of his criminal trial, including the witnesses and their
testimony. The petitioner also clearly lacked a com-
mand of the anticipated testimony of potential wit-
nesses, including Daisy Cruz, who he testified would
supply the jury with information about the petitioner’s
‘‘problems’’ with the victims’ mother, as opposed to a
recantation by Y.H. More specifically as to Ms. Cruz,
the petitioner had no idea how her testimony would
assist in the defense against the sexual assault allega-
tions, testifying: ‘‘That’s a question I ask myself.’’ Oddly,
the petitioner acknowledged memory problems, testi-
fying that they arose for the first time during the crimi-
nal litigation.
Regarding his work history, the petitioner testified
that he worked under the table for Jeffrey Cianciolo.
He further acknowledged that there would be no
employment records of his undocumented work, with
the possible exception of checks, the means by which
he was occasionally paid. The petitioner attributed any
discrepancy between his habeas trial testimony and the
information he reported to the Office of Adult Probation
in his presentence investigation to the absence of a
Spanish language interpreter at the interview. The peti-
tioner’s testimony contradicted that of his former
employer when he testified that he was never unem-
ployed for long periods of time. There was nothing in
the testimony of the petitioner that called into question
the level of legal representation he received from under-
lying counsel.
7
David Mantell, Ph.D.
Doctor Mantell is a clinical psychologist specializing
in child abuse and neglect issues. The doctor testified
to his excellent credentials and extensive experience
in the area of child abuse and neglect investigations
and forensic interviews. The witness was accepted by
the court as an expert in the assessment and investiga-
tion of child sexual abuse.
The doctor’s testimony consisted mainly of a discus-
sion of the reasons children report or fail to report
sexual abuse. In sum, although Dr. Mantell’s testimony
was somewhat interesting, this court finds that in this
particular case, it did not add much probative value for
the fact finder.
Dr. Mantell testified to having viewed the forensic
interview of Donna Meyer. He testified that the inter-
view was ‘‘rushed,’’ which, according to the witness,
was her usual style. He further testified that Ms. Meyer’s
interview had a very short ‘‘rapport building phase.’’
Although he testified that the interview omitted two
phases from the interview that, although they are part
of best practices, are not part of the RATAC protocol:
conversational rule review and narrative training. The
witness testified that the aforementioned steps can be
‘‘skipped’’ with ‘‘older witnesses’’; there was no clarifi-
cation as to the age range for ‘‘older’’ witnesses.
The doctor was complimentary of the interview in
several respects, testifying that ‘‘many’’ of Ms. Meyer’s
questions were appropriate and that Ms. Meyer’s inter-
view style was also appropriate, described by him as
‘‘calm’’ and ‘‘welcoming,’’ showing interest in the wit-
ness and asking open-ended questions which invited
narrative responses. This court disagrees with the wit-
ness’ characterizations of Ms. Meyer’s questions on the
‘‘core issues’’ relating to the sexual assault as leading
or a ‘‘forced choice.’’ The court does not find the offer
of two opposing possibilities to an interview subject to
be leading in that it does not suggest an answer. On
the other hand, this court does question an interview
style that might actively and directly suggest that an
interview subject might be ‘‘wrong’’ about a response,
if he or she is ‘‘really sure’’ about a response or if he
or she has a ‘‘grudge’’ against the claimed abuser.
To the extent this court agrees with the witness that
a ‘‘positive duty’’ of forensic interviewers exists to
explore possible alternative explanations for the sexual
abuse allegations, including an inquiry as to whether
the subject has not disclosed all sexual touching, clarify-
ing the accuracy of the material provided and exploring
other potential sources of the subject’s sexual knowl-
edge, Dr. Mantell testified that Ms. Meyer ‘‘seemed to
consider’’ that M.H. may have been seeking to divert
attention from her sexual behavior with her boyfriend.
As to the testimony of Theresa Montelli, Dr. Mantell’s
testimony of the various motives for children to both
report abuse when it did not occur and deny abuse
when it did occur may have been as harmful as it was
helpful to the defense. This court finds noteworthy and
probative of the credibility of this witness the extent
to which he was willing to engage in speculation and
surmise on direct examination, while refusing to specu-
late and insisting that an issue be ‘‘well investigated’’
before he could offer a response on cross-examination.
‘‘Mere conjecture and speculation are not enough to
support a showing of prejudice.’’ (Internal quotation
marks omitted.) Hamlin v. Commissioner of Correc-
tion, 113 Conn. App. 586, 596, 967 A.2d 525, cert. denied,
291 Conn. 917, 970 A.2d 728 (2009). An expert’s opinion
may not be based on surmise or conjecture. State v.
Nunes, 260 Conn. 649, 672–74, 800 A.2d 1160 (2002).
Finally, his description and explanation of the data
relating to percentages of false allegations and recanta-
tion rates, if allowed to come before the jury, could
easily have been turned to the prosecuting author-
ity’s advantage.
Taken as a whole and placed in the context of the
entirety of the evidence adduced at the habeas trial,
this court finds that the petitioner has failed to establish
the constitutionally deficient performance of underly-
ing counsel in not consulting with a mental health
expert. Additionally, this court does not find deficient
performance surrounding the testimony of Theresa
Montelli or Donna Meyer. Even if the response provided
to a question is damaging to the defense, the court must
assess the performance of counsel as a whole. The
in-trial decision of a criminal defense attorney cross-
examining a witness to ask or not ask one particular
question should be subject to analysis in the habeas
context only in the rarest of circumstances. Crocker v.
Commissioner of Correction, 126 Conn. App. 110, 132,
10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333
(2011). Accordingly, these claims fail.
8
Attorney Kenneth Simon
Ken Simon, an extremely well-qualified and experi-
enced criminal defense attorney, testified as an expert
in criminal defense for the petitioner. He testified to
extensive experience in the litigation of child sexual
abuse cases. Although Attorney Simon had some quib-
bles with certain areas of the representation of underly-
ing counsel and was very ‘‘troubled’’ by one question
in particular, it is the duty of this court to assess the
level of representation as a whole. Taking counsel’s
representation as a whole, this court does not find it
constitutionally deficient. This court also finds it trou-
bling and probative of the lack of foundation for the
opinion of the witness that he was not supplied with
the entire transcript of the habeas trial testimony of
Claribel Santos during the preparation for his testi-
mony. His opinion on the impact of her testimony, there-
fore, is not fully informed. Cf. State v. John, 210 Conn.
652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.
Ct. 84, 107 L. Ed. 2d 50 (1989).
During closing arguments, the petitioner withdrew
several claims: C, E, F, J, K and M of the amended
petition. The court will only note, therefore, that having
considered the merits of those claims in the preparation
of this decision, the court finds that the petitioner has
failed to establish both deficient performance and preju-
dice. As these claims have been withdrawn, no further
explication from this court is necessary. As to the por-
tion of claim L that references the failure to call Carlos
Santos, Mr. Santos having failed to testify in this matter
and there being insufficient evidence to discern what
he would have added to the criminal defense case, this
claim fails.
Regarding the cross-examination of the victims in
this case, the court does not find deficient performance.
The petitioner has failed to demonstrate the reasonable
probability that doing so would have resulted in a more
favorable outcome, rather than alienating the jury by
evoking additional sympathy for the complainants.
‘‘[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 selective and limited
cross-examination of such witnesses, than are ever won
by demolishing a witness on cross-examination.’’ (Inter-
nal 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). As to M.H.,
counsel’s examination and strategic decision not to
object to the entry of the forensic video resulted in the
jury being made aware of the untruthfulness of some
of her testimony as well as her sexual activity.
Counsel’s strategic decision not to challenge the vic-
tim’s testimony on every potential inconsistency on
cross-examination is a sound one. ‘‘An attorney’s line
of questioning on examination of a witness clearly is
tactical in nature. [As such, this] court will not, in hind-
sight, second-guess counsel’s trial strategy.’’ (Internal
quotation marks omitted.) Velasco v. Commissioner
of Correction, supra, 119 Conn. App. 172. It can be
considered a valid strategy in the context of this case
not to prolong the testimony of potentially sympathetic
witnesses with lengthier cross-examination when coun-
sel has determined that there is little to be gained from
additional questioning. There is insufficient probative
or persuasive evidence of motive, interest or bias
against the petitioner by the victims, other than that
properly occasioned by being sexually assaulted.
Additionally, as to O.S., the mother of the victims,
the petitioner has failed to demonstrate both deficient
performance and prejudice. The petitioner has failed
to adduce credible evidence of bias, motive or interest
against the petitioner, other than that occasioned by
being the mother of two children sexually and physi-
cally abused by him, especially in the context of the
long delay between the separation and disclosures. The
petitioner presented contradictory and equivocal evi-
dence as to the collateral issue of O.S.’s work history.
Further, this court does not find that the potentially
devastating evidence of painting the petitioner as a
hard-drinking philanderer who does not meet his child
support obligations in an effort to manufacture a
defense of animosity would have been helpful to the
defense. Finally, the evidence makes clear that the peti-
tioner had sufficient access to the victims to commit
these offenses several times over. Accordingly, these
claims fail.
III
CONCLUSION
Based upon a review of the entire record, this court
finds that the petitioner has failed to demonstrate con-
stitutional deficiencies in the investigation, preparation
and trial of the underlying matter. It is not the case that
every criminal conviction is due to ineffective legal
representation. The petitioner has also failed to demon-
strate counsel’s deficiencies in the examination of the
several named witnesses. The petitioner has failed to
demonstrate a reasonable probability that inquiry of
those witnesses into areas not covered during the
underlying evidentiary proceedings would have yielded
a different, more favorable, result for him. ‘‘Mere con-
jecture and speculation are not enough to support a
showing of prejudice.’’ (Internal quotation marks omit-
ted.) Hamlin v. Commissioner of Correction, supra,
113 Conn. App. 596. Additionally, the petitioner has
failed to demonstrate both deficient performance and
prejudice by the absence of the listed potential defense
witnesses. The petitioner has also failed to establish
the need for counsel to retain, consult with, or retain
a mental health professional as part of trial preparation.
There has been no showing as to what additional benefit
would have been derived from such efforts.
Considering the foregoing, the court finds that the
petitioner has failed to rebut the presumption of compe-
tence in the circumstances of this case. The court denies
the petition for a writ of habeas corpus. Judgment shall
enter for the respondent.
* Affirmed. Santos v. Commissioner of Correction, 186 Conn. App. ,
A.3d (2018).