Opinion
CV134005276S
01-10-2019
Jeffrey GOULD (Inmate #146239) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner filed a pro se petition for a writ of habeas corpus on January 30, 2013. The pro se petition was amended twice by assigned counsel, with the second amended petition asserting claims in three counts: first, that trial counsel, Attorney Paul Catalano, rendered ineffective assistance; second, that appellate counsel, Attorney Glenn Falk, rendered ineffective assistance; and third, that the petitioner’s rights to due process and a fair trial were violated by the prosecutor and the trial court. The respondent’s amended return denies the petitioner’s claims and that he is entitled to habeas corpus relief.
The parties appeared before the court on December 5 and 6, 2017, as well as on January 10, 2018, for a trial on the merits. The petitioner entered numerous documents into evidence; the respondent entered two documents into evidence. Additionally, the court received testimony from the petitioner, his former trial counsel, Attorney Catalano, his former appellate counsel, Attorney Falk, and former police officer Dean Cyr. The parties filed post-trial briefs.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
DISCUSSION
The petitioner was the defendant in a criminal case, docket number CR11-0048846-T, in the judicial district of New Britain. The petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). The charge stemmed from a report by A.M., the petitioner’s step daughter, that she was sexually assaulted by the petitioner on May 11, 2011. The petitioner proceeded to trial and was found guilty by a jury. On January 10, 2013, the trial court, Alander, J., sentenced the petitioner to a total effective sentence of twelve years of incarceration, of which two years is a mandatory minimum, followed by five years of special parole.
The petitioner appealed from the judgment of conviction. On appeal, the petitioner "argue[d] that the trial court ... imposed a more stringent English proficiency standard than is required under General Statutes § 51-217(a)(3), improperly disqualifying E.F., a machinist, despite his ability to both speak and understand the English language. As a result of E.F.’s improper disqualification, the [petitioner] claim[ed] that the fairness of his trial is called into doubt." State v. Gould, 155 Conn.App. 392, 393, 109 A.3d 968 (2015). The Appellate Court "agree[d] ... that the trial court’s excusal of E.F. from jury service on the basis of his purported inability to speak English lack[ed] support in the record." Id. Nevertheless, the Appellate Court also concluded that the petitioner was not prejudiced by this error and was not deprived of his right to a fair trial. Id. The Supreme Court granted certification to appeal and subsequently concluded that the Appellate Court properly resolved the claim. State v. Gould, 322 Conn. 519, 521, 142 A.3d 253 (2016).
The petitioner initiated the present habeas corpus matter shortly after he was convicted and sentenced.
I. Count One— Ineffective Assistance by Attorney Catalano
The petitioner alleges numerous failures by Attorney Catalano. Several bases for deficient performance were withdrawn at the habeas trial, namely the allegations in paragraph 28, subsections B, C, J, K, L, P, and Q. The petitioner’s post-trial brief also specified that subsections G and U were withdrawn. Additionally, paragraph 32, subsections A, C, and D were withdrawn, as well paragraphs 37, 38, and 40. The court will address the remaining allegations in seriatim, either individually or grouped together when it facilitates the court’s analysis and discussion.
The post-trial brief withdrew paragraph 28, subsection G. Two other allegations of deficient performance relating to A.M. were not withdrawn— -subsections H and I. The petitioner’s post-trial briefs do not address the allegations in subsections H and I. The court deems subsections H and I to be abandoned. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court"); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn . 926, 986 A.2d 1053 (2010) ("The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim").
The court will refer to the claims as identified in the operative amended petition. The petitioner’s post-trial brief altered the subparagraph lettering based on withdrawn allegations.
"A criminal defendant is constitutionally 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 article first, § 8, of the Connecticut Constitution ... As enunciated in Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ...
" ‘[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
" ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the [petitioner’s] own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the [petitioner] and on information supplied by the [petitioner]. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’ Strickland v. Washington, supra, 466 U.S. at 690-91, 104 S.Ct. 2052.
" ‘Defense 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 investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’ State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985). Furthermore, ‘[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’ Id., at 297, 497 A.2d 35.
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental 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." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
A. Failure to Present a Theory of Defense that A.M. Sexually Assaulted the Petitioner
The petitioner first claims that Attorney Catalano performed deficiently by not presenting a defense that cast the petitioner as the victim of the sexual assault. The state’s theory, based on A.M.’s account, was that the petitioner sexually assaulted her. The petitioner maintained his innocence and that A.M. was the actual aggressor and used physical force on him. Attorney Catalano strove to show to the jury that the physical evidence contradicted A.M.’s story. The petitioner did not want to present a defense premised on consensual sexual contact between him and A.M.
Attorney Catalano attempted to show to the jury that the petitioner’s high level of intoxication, when viewed together with A.M. drinking together with him prior to the assault and her reportedly dancing seductively for him, buttressed a portrayal of A.M. as the aggressor. The petitioner, who is considerably larger and heavier than A.M., would not easily be perceived by the jury as being overpowered and sexually assaulted. Another significant concern was that although the petitioner indicated to Attorney Catalano that he had erectile dysfunction, the petitioner’s DNA was ascertained to be present inside A.M. and mixed with her DNA. Further complicating defense efforts was the fact that the petitioner had provided different versions of events to the police in his statements, including one in which he described the sexual contact as being consensual. Attorney Catalano strove to show that the evidence from the site of the purported attack did not support A.M.’s description of the events.
The petitioner testified at the habeas trial in great detail and provided his rendition of what transpired between him and A.M. A recitation of all the details provided by the petitioner is unnecessary. According to the petitioner, A.M. sexually assaulted him in several positions after dancing seductively and undressing. The court does not find the petitioner credible.
Starting immediately after he was detained until the present, the petitioner has varied and evolved his story. His statements are contradictory, ranging from there was no sexual contact at all, to consensual intercourse, then to A.M. sexually assaulting him, and his versions of the facts are not credible (compare Petitioner’s Exhibits 4 and 25, as well as Respondent’s Exhibit A). The petitioner’s story shifted from denial to consensual sexual contact, and then to the petitioner being the actual victim of a sexual assault. Given the size and weight differences between the petitioner and A.M., with the petitioner being much bigger and both taller and heavier, it borders on the preposterous to posit that A.M. overpowered the petitioner. There is ample support for Attorney Catalano’s conclusion that it would have been highly detrimental to the defense for the petitioner to testify. Any cross examination of the petitioner would have been highly devastating.
Because of the petitioner’s total lack of credibility, the court concludes that there is no basis to conclude that Attorney Catalano was deficient for failing to present a defense theory that A.M. sexually assaulted the petitioner. In fact, it would have been deficient for Catalano to present such a defense and highly prejudicial to the petitioner.
D. Failure to Present Evidence of the Petitioner’s Medical Conditions
The petitioner testified that he had knee problems and experienced erectile dysfunction. Copies of medical records were entered into evidence. The medical records reflect that the petitioner had knee issues and in 2009 reported that he noticed the emergence of impotence. However, these records combined with the petitioner’s testimony do not show that it would have been impossible for the petitioner to have committed the sexual assault as reported by A.M. The petitioner’s conflicting statements about what transpired would not have been clarified by evidence of his medical conditions. The evidence at the habeas trial is of little assistance to the petitioner and does not prove Attorney Catalano was deficient in not obtaining and presenting them in the criminal trial, where it would have worked to undermine the petitioner’s credibility.
E. & F. Failures to Adequately Challenge Admission of Petitioner’s Statement to Officer Cyr and to Impeach his Testimony
The petitioner both faults Attorney Catalano for not adequately seeking suppression of the petitioner’s statement to Officer Cyr and not impeaching Cyr’s testimony during the criminal trial. Although the petitioner identifies circumstances that he now argues support his contention that his statement to Officer Cyr was involuntary, these circumstances are tenuous at best. Thus, because he was questioned for hours, tired, perhaps still under the influence of alcohol to some degree, and did not have his reading glasses, the petitioner asserts that his statement was involuntary and even fabricated by Officer Cyr.
Attorney Catalano described the statement as being both helpful and not helpful to the defense. The statement was helpful because it contained the petitioner’s version of what transpired; it was also unhelpful because it was contradicted by other versions the petitioner provided. The petitioner did not admit to a crime in the statement to Officer Cyr. The statement’s problems arise by its comparison to other statements proffered by the petitioner.
Attorney Catalano acknowledged that he did not discuss suppression of the statement with the petitioner, even though he knew of the circumstances highlighted presently and posited by the petitioner in support a claim of involuntariness. Counsel did not see a viable way to keep that statement, as well as others, out via a suppression motion. Since the petitioner’s statement to Officer Cyr contained the petitioner’s version of the events that he conveyed repeatedly to Attorney Catalano, suppression would be contrary to the defense theory. Attorney Catalano did not investigate Officer Cyr to determine if there were disciplinary actions taken against him based on his misconduct.
The court concludes that Attorney Catalano did not render deficient performance by not seeking to suppress the petitioner’s statement to Officer Cyr. That statement, if anything, aligned with the petitioner’s defense theory and suppression would not have desirable, nor likely to prevail under the totality of the circumstances test. State v. Azukas, 278 Conn. 267, 288, 897 A.2d 554 (2006) ("To be valid, a waiver must be voluntary, knowing and intelligent ... The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights ... In considering the validity of a waiver, [courts must] look to the totality of the circumstances of the claimed waiver." (Internal citation omitted.)) Attorney Catalano’s brief cross examination was not outside the scope of effective representation, especially given the defense theory as underscored in the closing arguments by Attorney Catalano, which conceded that there had been consensual sexual contact between A.M. and the petitioner.
Officer Cyr testified at the habeas trial about the disciplinary actions he received for purchasing and consuming alcohol with an underage female, as well as failing to report the incident to his superior officers. The court views the impeachment value of the disciplinary actions as being marginal at best. Officer Cyr’s improper conduct did not involve interviewing suspects or taking statements. Attorney Catalano indicated that he thought he had a weak, good faith basis for a motion to suppress the statement, and did not think that such a motion had a realistic chance of being granted based on the totality of the circumstances. Furthermore, the statement embodied the petitioner’s version of what transpired between him and A.M., so that suppression would negatively impact the defense. See, e.g., Bosque v. Commissioner of Correction, 130 Conn.App. 383, 387-88, 23 A.3d 90 (affirming habeas court’s determination that counsel not filing a motion to suppress statement to the police was reasonable trial strategy in pursuit of a defense strategy rooted in the statement itself), cert. denied, 302 Conn. 932, 28 A.3d 344 (2011).
The petitioner’s version in which A.M. sexually assaulted the petitioner, which he testified about at the habeas trial, is not credible. The court also does not find credible the petitioner’s testimony that Officer Cyr did not accurately write down his statement.
M. Failure to Present the Petitioner’s Testimony
The petitioner further alleges that Attorney Catalano was deficient for not having the petitioner present testimony in support of his defense. After the state rested, Attorney Catalano made an oral motion for a judgment of acquittal, which was denied. Transcript (November 6, 2012), pp. 16-18. The court then gave Attorney Catalano the opportunity to discuss defense witnesses before proceeding further. Id., p. 18. The court was aware that there was the possibility of at least one witness— the petitioner— who might present testimony. Id., pp. 18-19. Attorney Catalano represented to the court that he and the petitioner would also discuss whether the defense should call one other witness in addition to the petitioner. Id., p. 19. That other potential witness had been successfully subpoenaed. Id. The court recessed so that counsel and the petitioner could conduct their discussion. Id. When the matter resumed, Attorney Catalano indicated to the court that the defense was not calling any witnesses and rested. Id. The court did not canvass the petitioner about his decision to not testify. Id., pp. 19-20. The criminal trial transcripts show that the court recessed specifically to provide Attorney Catalano and the petitioner the opportunity to discuss whether the petitioner and one other potential witness should testify.
" ‘The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that are essential to due process of law in a fair adversary process ... The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony ... The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call witnesses in his favor, ... Logically included ... is a right to testify himself ... The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony ... A defendant’s right to testify is also protected by his rights to a fair trial, to due process, to present a defense, and to be free from compelled testimony under article XVII of the amendments to the Connecticut constitution and under article first, § 8, of the Connecticut constitution.’ (Citations omitted; internal quotation marks omitted.) State v. Shinn, 47 Conn.App. 401, 410, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).
" ‘Although a defendant has the right to testify on his or her behalf, that privilege is not triggered unless he or she takes some affirmative action regarding his right to testify ... The accused must act affirmatively. While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.’ (Citations omitted; internal quotation marks omitted.) State v. Hobson, 68 Conn.App. 40, 45, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002)." State v. Robert H., 71 Conn.App. 289, 302-03, 802 A.2d 152 (2002), aff’d, 273 Conn. 56, 866 A.2d 1255 (2005).
"Our Supreme Court has held that, in such a situation [i.e., where a defendant did not represent at trial that he either wanted to testify or did not know that he could testify], the trial court is under no affirmative duty to conduct a canvass to determine if a defendant’s waiver of the right to testify is knowing, voluntary, and intelligent. See State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006).... ‘In Paradise, our Supreme Court held that the substantive right to testify under federal constitutional law does not contain a corollary procedural requirement that a trial court canvass a defendant concerning his waiver of his right to testify unless the defendant affirmatively states that he wishes to testify or that he did not know he could testify.’ State v. Burgos, 170 Conn.App. 501, 515, 155 A.3d 246, cert. denied, 325 Conn. 907, 156 A.3d 538 (2017)." State v. Frazier, 181 Conn.App. 136-371, 185 A.3d 621, cert. denied, 328 Conn. 938, 184 A.3d 268 (2018).
According to Attorney Catalano, he did not want the petitioner to testify. A particular concern for Attorney Catalano was that the petitioner would testify about his conduct in such a way as to open the door to cross examination that would undermine or destroy his credibility, as well as introduce prior conduct harmful to the defense. However, in spite of concluding it was inadvisable for the petitioner to testify, Attorney Catalano explained to the petitioner that it was his decision whether or not to testify. The petitioner testified at the habeas trial that Attorney Catalano never indicated to him that it was his right to decide whether or not to testify. The court does not find the petitioner to be credible. Thus, because the petitioner did not affirmatively indicate to the court that he wanted to testify and there is no credible evidence that he did not know that he could testify, the petitioner may be found to have waived his right to testify. Based on the credible evidence presented to the court, the court concludes that Attorney Catalano did not render deficient performance by failing to have the petitioner testify in his own defense.
N. & O. Failures re Usage of "Victim" and "Rape Kit"
The petitioner claims that Attorney Catalano failed to file a motion in limine to bar the use by the prosecutor of the word "victim" and the phrase "rape kit." The petitioner also claims that Attorney Catalano himself failed to refrain from using the very same word and phrase.
" ‘Our Supreme Court has stated that a court’s repeated use of the word victim with reference to the complaining witness is inappropriate when the issue at trial is whether a crime has been committed ... A different set of circumstances exists [however] when the person making [such a] reference to the complaining witness is the prosecutor.’ (Citation omitted.) State v. Rodriguez, 107 Conn.App. 685, 701, 946 A.2d 294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008). This is so, our courts have held, for two basic reasons. First, although a prosecutor’s reference to the complainant as the ‘victim, ’ in a trial where her alleged victimization is at issue, risks communicating to the jury that the prosecutor personally believes that she in fact is a victim, and thus the defendant is guilty of victimizing her, the isolated or infrequent use of that term in a trial otherwise devoid of appeals to passion or statements of personal belief by the prosecutor will probably be understood by jurors to be consistent with the prosecutor’s many proper references to the complainant as the complainant or the alleged victim, particularly where the prosecutor openly acknowledges and willingly accepts the state’s burden of proving the defendant guilty beyond a reasonable doubt solely on the basis of the evidence admitted at trial. Second, when a prosecutor uses that term in argument, where his or her role is generally expected and understood to be that of an advocate, such isolated or infrequent references to the complainant as the ‘victim’ are likely to be understood by jurors as parts of a proper argument that the evidence has established the complainant’s victimization, and thus the defendant’s guilt, beyond a reasonable doubt. In either of those circumstances, the prosecutor’s use of the term ‘victim’ in reference to the complainant is not considered improper because such usage does not illicitly ask the jury to find the defendant guilty on the basis of the prosecutor’s personal belief in the complainant’s victimization or the defendant’s guilt.
"Notwithstanding our courts’ willingness, in the previously described circumstances, to excuse a prosecutor’s rare and infrequent use of the term ‘victim’ to describe the complainant in a criminal trial, our Supreme Court has expressly admonished prosecutors to refrain from making excessive use of that term because of its obvious potential for prejudice. Thus, in State v. Warholic, 278 Conn. 354, 370 n.7, 897 A.2d 569 (2006), where the court upheld the defendant’s conviction despite the prosecutor’s two unobjected to references to the complainant as the victim during his rebuttal closing argument, the court warned prosecutors as follows: ‘We caution the state, however, against making excessive use of the term ‘victim’ to describe a complainant 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 committed a crime against the complainant.’ Consistent with that warning, the Supreme Court later, in State v. Victor O., 301 Conn. 163, 20 A.3d 669, cert. denied, 565 U.S. 1039, 132 S.Ct. 583, 181 L.Ed.2d 429 (2011), made the following, telling observation when affirming a conviction despite the prosecutor’s one-time use of the term ‘victim’ in a case where the trial court had denied the defendant’s motion in limine to prevent any use of that term at all. ‘We note, ’ said the court, ‘that, although the trial court had denied the defendant’s motion in limine to preclude the state from using the term "victim" when referring to [the complainant], the state’s attorney prudently avoided the use of that term except on the one occasion that the defendant has identified.’ (Emphasis added.) Id. at 191 n.11, 20 A.3d 669. Under these authorities, in order to avoid the risk of prejudice naturally arising from a prosecutor’s reference to the complainant as the victim— a usage which our Supreme Court has expressly urged prosecutors, out of prudence, to avoid in any case where the issue is whether or not a crime was committed— a trial court obviously has the power to order a prosecutor not to use the term ‘victim’ in reference to the complainant during trial." State v. Thompson, 146 Conn.App. 249, 268-70, 76 A.3d 273, cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013). The use of the phrase "rape kit" also has the potential to be prejudicial.
Attorney Catalano did not file a motion in limine to prevent the prosecutor from using the word "victim" and the phrase "rape kit" because he assumed that the prosecutor would refrain from using those terms. Attorney Catalano knew that he could, if warranted, object to such terms. Both the prosecutor and Attorney Catalano referred to A.M. mostly as the complainant or simply as "A.M." While there are some references to A.M. as the victim, the context of that term alongside the far more common term complainant did not, in this court’s analysis, prejudice the petitioner. Similarly, while the phrase "rape kit" was used, it was also referred to as a "Sexual Assault Evidence Collection Kit." Transcript (November 6, 2012), p. 3.
According to Attorney Catalano, he would have objected at the time of trial when such terms or phrases were used. Attorney Catalano also used the word "victim" and the phrase "rape kit," albeit less frequently than the prosecutor and several witnesses, and indicated any use of such phrases was an accident without a strategic reason. Lastly, Attorney Catalano did not make timely objections, nor did he ask the court to give the jury any curative instructions. The court finds that reasonably competent criminal defense counsel would raise timely objections, request curative instructions, and refrain from using these terms.
Although the word "victim" and the phrase "rape kit" were used during the jury trial, the court concludes, however, that their usage was not so prevalent as to prejudice the petitioner. The complainant was mostly referred to as A.M. or as the complainant, not as the victim. The rape kit, or sexual assault evidence collection kit, contains the materials collected in cases where a sexual assault may have occurred. The evidence in such a kit necessarily must be supplemented by other evidence, most commonly testimony, to prove to the fact finder that a sexual assault occurred. A reasonable fact finder or juror would not conclude that a collection kit referred to as a "rape kit" proves the sexual assault and thereby increase the prejudice to a defendant. Therefore, the court concludes that the petitioner was not prejudiced by any errors by Attorney Catalano as to the usage of the terms during the trial.
R. & S. Failures re Prosecutor
The petitioner avers that Attorney Catalano inappropriately complimented the prosecutor and his presentation of the state’s case-in-chief. Additionally, the petitioner faults counsel for failing to object to the prosecutor’s improper closing argument and for not requesting a curative instruction from the trial court.
Attorney Catalano at the beginning of his summation arguments noted that the prosecutor had done "a very fine job in this trial, the evidence he produced, and his summation and of course he went in order of the witnesses, and I’m going to go in reverse order of the witnesses and it’s just maybe because Mr. Preleski [the prosecutor] and I see things a little bit differently." Transcript, (November 6, 2012), p. 34. The compliment reflects professionalism and courtesy to another officer of the court, not deficient performance, and does not indicate Attorney Catalano compromising his advocacy. This court sees no basis for ineffective assistance in this regard.
The petitioner argues that "the state’s attorney misstated the evidence, expressed his personal opinion on Mr. Gould’s guilt, and improperly vouched for AM’s testimony." Petitioner’s Post-Trial Brief, p. 25. The operative amended petition, however, did not allege with specificity the improper closing arguments. The post-trial brief does not identify the arguments the petitioner asserts are improper.
The court has reviewed the state’s initial and rebuttal arguments, which both were succinct, and does not find that they were improper. Transcript (November 6, 2012), pp. 24-34, and 42-46. The court, therefore, concludes that the petitioner has failed to show how Attorney Catalano was deficient for complimenting the prosecutor and failing to object to the state’s closing arguments.
T. Failure to Present the Petitioner’s Military Record During Sentencing
The final allegation against Attorney Catalano is that he failed to present to the sentencing court the petitioner’s military record. The petitioner’s post-trial brief expands upon this allegation by arguing that the prosecutor presented misleading and incorrect information regarding the petitioner’s military record and that Attorney Catalano failed to correct that information. Attorney Catalano did not indicate at the time of sentencing that there were any corrections to make to the presentence investigation (PSI) report. However, the petitioner addressed the sentencing court at length and provided the history of his military service.
There is no evidence that the petitioner has presented which shows that the sentencing court in any way factored the petitioner’s military service into the sentence. Nor is there evidence that if the PSI contained an uncorrected error regarding his military service, that the sentence imposed by the court was premised on such error. The court concludes that the petitioner has failed to show both that counsel was deficient and how he was prejudiced thereby.
II. Count Two— Ineffective Assistance by Attorney Falk
The petitioner alleges that Attorney Falk failed to rely upon United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) as persuasive authority to support a claim that the trial court improperly disqualified a prospective juror.
"It is axiomatic that, in order to establish a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish both deficient performance and the resulting prejudice. See Mozell v. Commissioner of Correction, 87 Conn.App. 560, 562, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005). The performance prong requires proof that appellate counsel’s performance fell below an objective standard of reasonableness. Id., 563. There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Just as the decision of trial counsel not to object to certain evidence is a matter of trial tactics, not evidence of incompetency; Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985); the tactical decision of appellate counsel not to raise a particular claim is ordinarily a matter of appellate tactics, and not evidence of incompetency, in light of the presumption of reasonable professional judgment. Orellana v. Commissioner of Correction, 135 Conn.App. 90, 99, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012). This is particularly apt because our courts have frequently chided appellate counsel for not exercising more discriminating judgment in selecting which claims to present on appeal, so as not to dilute the strength of strong arguments by forcing the court to consider weak ones. See, e.g., id., 98; Johnson v. Commissioner of Correction, 131 Conn.App. 805, 809, 29 A.3d 166 (2011); DaEria v. Commissioner of Correction, 107 Conn.App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).
"The prejudice prong requires proof that, had the prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal. Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808. A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel. Crawley v. Commissioner of Correction, 141 Conn.App. 660, 665, 62 A.3d 1138, cert. denied, 308 Conn. 946 (2013). Our scope of review regarding the underlying facts found by the habeas court is the clearly erroneous standard, and the plenary standard of review applies regarding the legal conclusion of whether those facts amount to ineffectiveness of counsel. Orellana v. Commissioner of Correction, supra, 135 Conn.App. 99." Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 222-23, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
The petitioner’s post-trial brief simply says, without any analysis, that had Attorney Falk relied upon Annigoni, that he would have succeeded. This conclusory remark absent any legal analysis borders on the specious. Annigoni was decided in 1996; the petitioner’s conviction is from 2012 and the Appellate Court affirmed the judgment of conviction in 2015. The petitioner’s own allegation acknowledges that the Annigoni decision from the Ninth Circuit Court of Appeals only has persuasive authority. Furthermore, the Ninth Circuit in 2011, several years prior to the petitioner’s direct appeal, noted that Annigoni was no longer a controlling case in that circuit. See U.S. v. Lindsey, 634 F.3d 541 (2011) (noting that Annigoni provided for automatic reversal when there is an erroneous denial of a defendant’s peremptory challenge, but had been "effectively overruled by the Supreme Court in Rivera v. Illinois, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009)").
Because Annigoni did not even provide persuasive authority for appellate counsel in the petitioner’s direct appeal, the claim that Attorney Falk rendered deficient performance is wholly without merit.
III. Count Three— Denial of Due Process and a Fair Trial
The third count of the amended petition avers that the petitioner’s right to due process and a fair trial was violated in several ways: the prosecutor knowingly or unknowingly presented false testimony from A.M.; the prosecutor presented misleading and incorrect information regarding the petitioner’s military record; the prosecutor made improper arguments to the jury, including misstatements of the evidence, expressing opinions about the petitioner’s guilt, and vouching for the state’s witnesses; and the trial court failed to adequately inquire into the petitioner’s decision whether to testify.
There is no evidence that the prosecutor knowingly presented false evidence from A.M. Any witness has the potential to unknowingly present incorrect or false evidence. There is no evidence demonstrating that the prosecutor unknowingly presented false testimony from A.M. The jury assessed A.M.’s credibility and determined that she was credible.
The court has already concluded that there is no evidence that the petitioner’s military record in any way impacted his sentence. The petitioner summarized his military record for the court. Any error in the PSI about the military record, restated by the prosecutor at sentencing, was clarified by the petitioner himself. Furthermore, there is no indication that information pertaining to the petitioner’s military record influenced the sentencing court in any manner.
The court has reviewed the criminal trial transcripts in their entirety. That review does not support the petitioner’s allegations that the prosecutor made improper arguments or misstated the evidence. These allegations are without merit.
Lastly, the court has previously addressed the claim that Attorney Catalano rendered deficient performance for failing to present the petitioner’s testimony. The petitioner did not avail himself of his right to testify. Although he now additionally claims that the court failed to inquire into his decision not to testify, the court does not have to canvass the petitioner about his decision not to testify. A trial court is not required to canvass a defendant regarding whether he or she desires to testify. State v. Paradise, supra, 213 Conn. 404-05. This final claim must also fail.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has failed to meet his burden of proof as to all claims in the second amended petition. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.
It is so ordered.