Cancel v. Comm'r of Corr., AC 40977

• Citation: 208 A.3d 1256,189 Conn.App. 667
• Decision Date: 07 May 2019
• Docket Number: AC 40977
• Court: Appellate Court of Connecticut
• Parties: Santos CANCEL v. COMMISSIONER OF CORRECTION

189 Conn.App. 667

208 A.3d 1256

Santos CANCEL

v.COMMISSIONER OF CORRECTION

AC 40977

Appellate Court of Connecticut.

Argued January 31, 2019

Officially released May 7, 2019

Vishal K. Garg, assigned counsel, with whom, on the brief, was Desmond M. Ryan, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent).

Keller, Prescott and Harper, Js.

HARPER, J.

The petitioner, Santos Cancel, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erred in concluding that his trial counsel had not provided ineffective assistance by failing (1) to litigate adequately the issue of

whether the two underlying criminal cases against the petitioner should have been joined for trial, (2) to object to opinion testimony from a witness on an ultimate issue of fact with respect to the criminal charges in one of the underlying cases, (3) to present expert testimony that could have offered an alternative innocent explanation for the sexual assault allegations against the petitioner, and (4) to attend the petitioner's presentence investigation interview with a probation officer. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal. The petitioner was charged in two cases alleging sexual assault that were joined for trial. After a jury trial, the petitioner was convicted, in both cases, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and (2). This court's opinion in the petitioner's direct appeal in State v. Cancel , 149 Conn. App. 86, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014), sets forth the following facts:

"The jury reasonably could have found the following facts with respect to the charges in the first case, which involved the victim, J.¹ J was eleven years of age in February, 2009, and resided with her uncle. J's mother resided with the [petitioner] and three of J's maternal siblings, all minors, in a nearby city. Sometime in February, 2009, J went to her mother's residence for an overnight visit. J's mother, the [petitioner], and the three other children were present in the residence during J's stay. On the night of her visit, J went to sleep in her sisters' room, where she shared a bed with two of her siblings. J later awoke to find the [petitioner] sitting on

the floor touching her ‘front private area.’ When the [petitioner] realized that J was awake, he apologized to her. J's mother then called for the [petitioner], prompting him to leave the room. Later that night, the [petitioner] returned to the bedroom. He woke J and instructed her to go to another bedroom in the residence. J proceeded to go into the other bedroom, alone, and went back to sleep. The [petitioner] then entered the other bedroom. He shut the door, positioned himself on top of J and ‘went up and down.’ The [petitioner] then cut a hole in J's underwear and initiated sexual contact with J's intimate areas. Following her encounter with the [petitioner], J went into the bathroom and felt a ‘wet’ sensation in and around her intimate parts.

"The next day, J returned to her uncle's home crying and ostensibly nervous. Sometime later, J told her uncle's girlfriend that she was having ‘a problem.’ J explained how the [petitioner] had ‘told her to go to sleep and to lay ... face down,’ and how he had cut her pants. J also told her uncle that the [petitioner] had tried to ‘abuse her’ the night she stayed at her mother's home. J's uncle subsequently contacted the social worker at J's school. The social worker met with J, and J explained what occurred on the night she stayed at her mother's residence. After meeting with J, the social worker reported the incident to the Department of Children and Families (department). The department, in turn, contacted the police. Thereafter, J and her uncle went to the police station where J explained to the police how the [petitioner] had made inappropriate contact with her on the night she stayed at her mother's residence. The police subsequently initiated an investigation into the incident and sought out J's mother and the [petitioner] for questioning. When the police arrived at the mother's residence, the [petitioner] ran out the back door. J's mother, however, agreed to accompany

the police to the station for questioning. During questioning, J's mother indicated that during J's most recent visit, J had told her that she woke up with holes in her underwear. J's mother also indicated that one of her other daughters had reported waking up with holes in her underwear on several occasions.

"The jury reasonably could have found the following facts with respect to the charges in the second case, involving the victim, G. G was ten years of age in February, 2009, and one of J's siblings. G lived with her mother and the [petitioner] on a permanent basis. After speaking to her mother in connection with J, the police questioned G. G told the police that on certain nights, the [petitioner] would come into her room and tell her to change her sleeping position. In the mornings that followed the [petitioner's] nighttime visits, G woke up to find holes in her underwear and pants, always in the vicinity of her intimate areas. These holes were never present when she went to sleep, but appeared after she woke up the next morning. She was uncertain of what caused the holes to appear, but believed that her cat caused the holes in her clothing because her cat previously had ripped holes in her sister's clothing. She explained that the holes in her clothing appeared only during the time the [petitioner] lived in the residence. She usually would give the underwear to her mother so she could mend them or throw them away. G revealed to police that she was wearing a pair of the mended underwear during questioning and that the dresser at her mother's residence contained many pairs of the underwear that still had holes in them or had been mended by her mother. With the mother's permission, the police took possession of the underwear G wore at the time of questioning. The police subsequently obtained and executed a search warrant on the mother's residence. During the search, the police seized twelve additional pairs of underwear and two pairs of pants

that either had holes in them or appeared to have been mended. In addition, the police seized two pairs of scissors. The thirteen pairs of underwear and two pants seized by the police subsequently were submitted for forensic analysis. The forensic analysis of the clothing revealed that the two pants and six out of the thirteen pairs of underwear had holes consistent with being cut by a sharp blade, not ripped. The holes in each item were located between the rear end and genital area. DNA analysis revealed that the [petitioner's] semen was present on the inside and outside of three pairs of G's underwear and one pair of her pants. The [petitioner] could not be eliminated as the source of semen present on another pair of underwear.

"The [petitioner] was arrested on March 5, 2009.² With respect to J's case, the state, in a substitute information, charged the [petitioner] with one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), and two counts of risk of injury to a child in violation of § 53-21 (a) (1) and (2). With respect to G's case, the state, in a substitute information, charged the [petitioner] with one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), and two counts of risk of injury to a child in violation of § 53-21 (a) (1) and (2).

"Before trial commenced, the state moved for a consolidated trial on the charges in both cases. The court granted the motion after defense counsel raised no objection. At the conclusion of evidence, the jury found the [petitioner] not guilty of attempt to commit sexual assault in the first degree, but guilty on each of the

remaining charges in J's case. The jury found the [petitioner] guilty of all charges in G's case. The court sentenced the [petitioner] to a total effective term of thirty years of imprisonment." (Footnotes in original.) Id., 88–91, 87 A.3d 618. This court affirmed the petitioner's convictions on direct appeal. See id., 103, 87 A.3d 618.

On July 31, 2014, the petitioner, in a self-represented capacity, filed a petition for a writ of habeas corpus. On October 12, 2016, the petitioner, represented by counsel, filed the operative amended petition. In the amended petition, the petitioner alleged that Attorney Tina Sypek D'Amato rendered ineffective assistance by failing (1) to adequately investigate, research, and educate herself about the issues unique to child sexual assault cases; (2) to object to the joinder of the two cases for trial; (3) to consult with an expert and present a suggestibility defense or an alternative innocent explanation as supported by expert testimony; (4) to object to testimony from Detective Cathleen Knapp that, in her opinion, G was a victim of sexual assault; (5) to attend the petitioner's presentence investigation interview; (6) to adequately cross-examine, impeach, or otherwise challenge the testimony of J, G, or their uncle; (7) to adequately pursue the production and disclosure of confidential and privileged materials related to J; and (8) to present evidence of a custody dispute between J's mother and J's uncle.

By memorandum of decision issued on August 17, 2017, the habeas court denied the amended petition, concluding that the petitioner did not meet his...