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DAVID P.* v. COMMISSIONER OF CORRECTION

(AC 36936)

Beach, Alvord and Norcott, Js.

Argued January 12—officially released August 9, 2016

(Appeal from Superior Court, judicial district of

Tolland, Bright, J.)

Heather Clark, assigned counsel, for the appellant

(petitioner).

Lisa A. Riggione, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and David Clifton, assistant state’s

attorney, for the appellee (respondent).
Opinion

NORCOTT, J. The petitioner, David P., appeals from

the judgment of the habeas court denying his petition

for a writ of habeas corpus.1 On appeal, the petitioner

claims that the habeas court erred by concluding that

habeas counsel for the petitioner in his first habeas trial

provided effective assistance. Specifically, the petitioner claimed that his first habeas counsel was ineffective because he failed to investigate and raise claims

that criminal trial counsel provided ineffective assistance when he (1) failed to offer witnesses who would

have supported a defense theory that the investigation

violated best practices, consistent with the interviewers’ exerting social pressure and influence on the victims; and (2) mischaracterized testimony of the

underlying allegations and elicited additional allegations. The petitioner further claims that the habeas

court erred by overruling the petitioner’s objection,

raised during the habeas trial, to testimony regarding

statements made by one of the child victims to Alphonse

Gambardella, a worker with the Department of Children

and Families (department), because the statements

were hearsay and not within any exception. We disagree

that habeas counsel in the petitioner’s first habeas trial

rendered ineffective assistance. Although we agree with

the petitioner that Gambardella’s testimony was hearsay not within any exception, we conclude that its

admission was harmless error. Accordingly, we affirm

the judgment.

This appeal is the mostrecent in a series of challenges

to the petitioner’s conviction, in 2000, of a total of five

counts of sexual assault in the first degree in violation

of General Statutes § 53a-70 (a) (2), one count of sexual

assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and five counts of risk of injury

to a child in violation of General Statutes § 53-21. These

convictions arose from the petitioner’s prolonged sexual abuse of three of his daughters, herein referred to

as A, B, and C.2 See State v. David P., 70 Conn. App.

462, 464–66, 800 A.2d 541, cert. denied, 262 Conn. 907,

810 A.2d 275 (2002). The petitioner ultimately received

two trials, the first of which ended in a mistrial on

September 30, 1998, and the second of which resulted in

these convictions on March 30, 2000.Afterthe petitioner

was convicted, on May 19, 2000, he was sentenced to

ninety years imprisonment.

From this judgment, the petitioner took an appeal,

in which he raised several challenges to his convictions

not relevant to those before us now. See id., 464. This

court affirmed the judgment. Id. In 2002, the petitioner

filed his first petition seeking a writ of habeas corpus.

In his amended petition and at trial in 2004, he alleged

that trial counsel was ineffective in that he failed to

obtain and offer evidence—specifically, time sheets

from his own employers and his former wife’s
employer—that would have helped to establish an alibi

defense. He also alleged that his appellate counsel was

ineffective for failing to brief properly and to raise certain claims that were unrelated to the claims in the

present appeal. After trial, the court dismissed the

habeas petition. The petitioner appealed from this dismissal, his appellate counsel withdrew, and the appeal

was dismissed for lack of diligence.

On June 14, 2013, the petitioner filed the operative

amended habeas petition in the present case. In his

petition, the petitioner raised, inter alia, the two claims

of ineffective assistance of counsel that he now pursues

on appeal. Following a trial on November 25 through

27, 2013, the court, Bright, J., denied the petition for

a writ of habeas corpus on May 19, 2014, and granted

certification to appeal on May 27, 2014. Further procedural history and facts will be set forth as necessary.

I

The petitioner claims that his habeas counsel in his

first habeas trial, Joseph Visone, rendered ineffective

assistance. Specifically, the petitioner claims that Attorney Visone was ineffective because he failed to investigate and raise a claim that trial counsel, William

Palmieri,rendered ineffective assistance when Palmieri

failed to present, in the petitioner’s second trial, a

defense theory that the investigation violated best practices because the investigators suggested the victims’

answers to questions. The petitioner further challenged

as clearly erroneous the habeas court’s findings that

(1) trial counsel had a reasonable expectation that he

would be able to present evidence important to his

theory; (2) Dr. David Mantell, a forensic psychologist

who testified as an expert for the petitioner in this

matter, had only minor issues with respect to the interviews of two of the victims; and (3) there was a risk

that if Palmieri had raised the alternative defense,

Gambardella and certain other constancy witnesses at

the second trial could have given damaging testimony.

The respondent, the Commissioner of Correction,

counters that these findings were supported by the

record. The respondent further argues that the habeas

court properly concluded that Palmieri was not ineffective for deciding to pursue a peer pressure defense

instead of a suggestive investigation defense, and that

Attorney Visone, therefore, was not ineffective for failing to raise the claim of ineffective assistance of trial

counsel in the first habeas action. We agree with the

respondent.

The following additional facts and procedural history

are relevant to our discussion of this claim. The habeas

court found that Palmieri’s theory of defense was that

(1) the allegations of A, B and C were false and arose

from social pressure exerted by A’s friends, K and H,

who were angry with the petitioner because he would

not allow A to see them; (2) B fabricated her allegations
in an effort to corroborate A’s allegations; and (3) the

allegations of C were simply not credible. Palmieri further argued at trial that there was little physical evidence of abuse of A, and none of B or C. At the first

criminal trial, Palmieri supported his theory by arguing

that the evidence showed that K and H falsely reported

the abuse to the department six months before A’s initial

disclosure, and that K reported the abuse to a social

worker at A’s school, attended the meeting with the

social worker, and did most of the talking during that

meeting, with A merely agreeing with K’s descriptions

of the alleged sexual abuse.

The habeas court furtherfound that the court, Licari,

J., declared a mistrial on all counts, except one, in the

petitioner’s first criminal trial on September 30, 1998,

because the jury deadlocked on all but the one count.

The jury did, however, acquit the petitioner of one of the

counts of sexual assault in the first degree involving A.

The habeas court found that Palmieri used the same

theory of defense in the second criminal trial, in March,

2000, as in the first. In the second criminal trial, however, defense counsel encountered setbacks that did

not arise in the first trial: for example, the state objected

to evidence that was admitted in the first trial regarding

the motive of H and K for filing a report with the department. The court, Fracasse, J., sustained this objection,

ruling that the evidence was irrelevant. Further hindering the defense’s theory, H and K denied any recollection of whether A had reported anything to them, and

of whether they discussed anything with the department. In addition to these challenges, in the second

criminal trial, the state presented two constancy of

accusation witnesses, L and D, neither of whom testified

at the first criminal trial. L,A’s classmate, testified that A

reported the petitioner’s sexual abuse to her six months

before H and K made their initial report to the department, and D, L’s mother, testified that L had relayed

this information to her around the time A told L.

In the habeas trial that is the subject of this appeal,

counsel forthe petitioner presented evidence of a different theory of defense, a theory that the petitioner

claimed was unreasonably not pursued by defense

counsel in the petitioner’s second criminal trial. This

alternative theory was that, rather than being fabrications produced under pressure from K and H, the allegations of the three sisters were suggested to them by

the manner in which the investigation was conducted.

In particular, the petitioner took issue with the interviews in which the sisters made their disclosures. He

claimed that the interviews were suggestive because

they were lengthy, repeated, and attended by numerous

authority figures, and that Palmieri performed deficiently by not calling as witnesses those persons who

were present for the interviews but had not been called

by the state, by not more thoroughly examining those
witnesses involved in these interviews who did testify,

and by failing to obtain certain medical, psychological,

and educational records that would have substantiated

how the interviews took place.

The habeas court’s factual findings with respect to

the petitioner’s claim regarding this alternative theory

of defense centered on the testimony and other evidence presented by and through several individuals who

were involved in the interviews of the three sisters,

and also upon the testimony of the petitioner’s expert

witness, Mantell, a licensed psychologist specializing,

inter alia, in child abuse and neglect and forensic psychology.

The habeas court found, from the testimony of Elizabeth DeLancy, a school psychologist, and A, that

DeLancy first learned of the abuse from A’s friend, K.

On May 12, 1997, K came to DeLancy’s office with A,

whereupon, according to DeLancy, K did most of the

talking. K would provide details of the abuse, DeLancy

would ask A if this was true, and A would simply

respond ‘‘yes.’’ DeLancy testified that A did describe

on her own when and where the last instance of abuse

had occurred. By contrast, A testified that K did all of

the talking in the May 12 meeting with DeLancy, and

that A initially denied the abuse. The habeas court found

that DeLancy’s notarized statement of May 15, which

memorialized these events, corroborated DeLancy’s

testimony about them.

The habeas court also summarized DeLancy’s May

13, 1997 meeting with A, in which A initially denied any

abuse, but then, in response to DeLancy’s insistence

that she tell the truth, disclosed that her father, the

petitioner, was having sex with her. DeLancy testified

that K was present for this interview. DeLancy also

testified that at the end of the interview, she told A

that she would need to disclose to the police and the

department, and that doing so would stop the abuse.

DeLancy’s aforementioned notarized statement, however, differed from her testimony about the May 13

meeting in that DeLancy recorded that she asked A

about specific sexual acts rather than asking A to

describe the acts that the petitioner had done.

According to the statement, A also wrote down on a

piece of paper, ‘‘My father is having sex with me.’’ The

statement also indicates that DeLancy brought K into

the room for ‘‘emotional support’’ for A, although K

was instructed not to answer any questions. Finally,

DeLancy reported in her statement that she told A that

she would have to be brave when meeting with the

police and the department, that she was doing the right

thing, and that she was a ‘‘good kid.’’

Again on May 13, 1997, A was interviewed, this time

by DeLancy, Gambardella, the principal of A’s school,

and Anthony Natale, a detective with the Hamden Police

Department, together, for ninety minutes. Natale testi-
fied that he told A at the beginning of the interview

that she had not done anything wrong and did not need

to be afraid to speak freely. He also testified both at

the petitioner’s criminal trial and in the habeas trial

that A had disclosed during the interview that the abuse

had been occurring for about one and one-half years.

Gambardella testified in the habeas trial that after

Natale left, A asked to speak to him alone and told him,

‘‘I know what sex is. My dad is having sex with me.’’

The habeas court found that Gambardella then interviewed each of A’s three sisters3

individually, with

DeLancy present, and both B and C each testified at

the petitioner’s criminal trials that they had denied to

Gambardella any abuse by the petitioner.

Again, on May 13, for one hour, Donald Remillard,

another detective with the Hamden Police Department,

interviewed A. On May 21, 1997, Janet Murphy, a nurse

practitioner, interviewedA alone at the Yale-New Haven

Hospital Child Sexual Abuse Clinic (clinic) about the

allegations as part of a medical examination for physical

evidence of sexual abuse. On June 10, 1997, Florence

Freudenthal, who worked at the clinic, interviewed A

again.

B also underwent several interviews. After A’s May

12 and 13 disclosures, she and her sisters were referred

to the Coordinated Council for Children in Crisis (4C)

for counseling sessions with Diane Brinkman. On June

4, 1997, during one such session, while Brinkman and B

were alone, B disclosed that the petitioner had sexually

abused her on two occasions. Brinkman reported

this disclosure.

On June 5, 1997, Natale and Gambardella interviewed

B with her mother present. While there, Gambardella

also spoke to B’s sisters. C did not disclose any abuse

at that time. On June 11, 1997, Freudenthal interviewed

B at the clinic, with no one else present. Murphy took

a medical history from B, alone, before examining her.

On June 24, 1997, Brinkman spoke alone with B, who

had brought her sister C with her to 4C. Brinkman then

spoke with C, who disclosed for the first time that the

petitioner had sexually abused her in the past in her

parents’ bedroom. Brinkman did not question C further

at that time about the allegations, but counseled her

and then reported C’s disclosure to the department and

the police.

On July 2, 1997, C then also underwent an interview

and a medical examination. Freudenthal conducted the

interview in the same fashion as with A and B, alone.

Murphy then conducted a physical examination of C.

To evaluate this process, the petitioner presented an

expert witness, Mantell. He testified that, at least since

1987, there has been an understanding of best practices

to be followed when interviewing children about alleged

sexual abuse, and, after describing those practices, he
opined that they had been violated in various ways

during the interviews of A, B, and C.

Mantell opined that best practices were violated in

numerous respects during interviews of A. First, he

took issue with the fact that DeLancy interviewed A at

all, rather than simply reporting the abuse and then

waiting for others to determine how to proceed. Second,

Mantell criticized how these interviews were conducted, particularly K’s involvement. According to Mantell, K’s presence, and the process of K doing most

of the talking and A merely affirming K’s statements,

created the possibility that A’s responses were either

coached by or entirely the product of K’s suggestions,

rather than A’s memory. K’s presence also put pressure

on A to confirm her friend’s account. Third, Mantell

suggested that DeLancy coaxed and validated the allegations by urging A to tell the truth after she initially

denied abuse, and then by telling her to be brave and

that only through disclosure of abuse could her father

get help.

Mantell also criticized the subsequent interviews of

A, finding fault with the presence of multiple people in

the interview room—especially DeLancy, whose presence could have pressured A to keep her story consistent with what she previously said to DeLancy rather

than to tell the truth. Mantell also criticized the lengthy

duration and repetition of the interviews, opining that

both could have hardened A’s belief in the events she

described, even if they never happened.

Mantell also opined that best practices were violated

during interviews of B. Mantell opined that the three

girls should have been separated during the period prior

to their May 13 interviews—although the habeas court

found that they were, in fact, interviewed separately—

to avoid cross-contamination between their stories in

the interviews. Regarding the June 5 interview, Mantell

again criticized the presence of multiple individuals and

the fact that B was asked what she had disclosed to

Brinkman, rather than simply being asked what had

happened.

Mantell repeated his criticisms of A’s and B’s interviews when he opined that best practices were violated

as well during the interviews of C. He added that in C’s

interview at the clinic, best practices had been violated

by having two people present, especially because one

of them was Brinkman, to whom C had previously disclosed and to whom it would therefore have been harder

subsequently to deny abuse.

Finally, Mantell criticized the police and the department for not testing alternative theories, including

whether A had been influenced by K to fabricate her

complaint, as well as both entities’ failure to check the

source of the girls’ knowledge by questioning it.

The habeas court found Mantell’s testimony as to A
to be ‘‘logical and well-supported,’’ although the court

was less firm in this conclusion regarding B’s and C’s

interviews. It held that the theory of defense offered

by the petitioner would have been a reasonable defense

to present at the petitioner’s second criminal trial. The

habeas court further concluded, however, that Palmieri’s failure to pursue this defense was not objectively

unreasonable, and in turn, that Attorney Visone’s decision not to challenge Palmieri’s failure was also not

objectively unreasonable.

In reaching these conclusions, the habeas court noted

several serious vulnerabilities of the defense advocated

by habeas counsel. First, the suggestive interview

defense would have left unexplained the damaging testimony of two witnesses, L and D, each of whom testified

to learning of A’s abuse almost a year before DeLancy

conducted the first interview of A on May 12, 1997. The

habeas court found that neither witness was involved

in A’s disclosure to DeLancy.

Second, the suggestive interview defense was not

consistent with the pattern of the girls’ disclosures in

that if B’s and C’s interviews were suggestive by virtue

of A’s presence, one would have expected them to disclose abuse by the petitioner at those times, but in

fact, each denied it. Furthermore, B and C each later

disclosed abuse to Brinkman. In those interviews, she

was alone with each girl and made no attempt to elicit

details from either of them, suggesting that she followed

Mantell’s best practices. Indeed, the habeas court characterized Mantell’s issues with B’s and C’s interviews

as ‘‘minor.’’

Third, there was little evidence to establish the suggestive interview defense with respect to later interviews of B and C. Though Natale and Gambardella’s

interview of B was recorded and transcribed verbatim,

the habeas court could find nothing suggestive in it.

Other than Mantell’s criticism that Brinkman was present for C’s interview, there was no evidence to show

that her interview at the office of Clifford Beers was

suggestive, either. The habeas court further noted that,

given the weaknesses of the defense as it could apply

to B and C, the jury could have been skeptical about

applying the suggestive interview defense to A as well.

Fourth, the suggestive interview defense would have

resulted in the jury’s hearing certain damaging testimony that it did not otherwise hear from various witnesses. For example, Gambardella, who did not testify

in the petitioner’s second criminal trial, testified in the

habeas trial that A specifically asked to speak to him

one-on-one, and that when she did so, she told him

unprompted that she knew what sex was and that her

father was having sex with her. This testimony would

have undermined the argument that A was pressured

to disclose by the presence of multiple interviewers,

and would also have served as constancy testimony to
corroborate A’s allegations. Freudenthal, whose notes

the habeas court deemed ‘‘mostly compliant’’ with Mantell’s view of best practices, could also have testified

as a constancy witness—as she otherwise could not

have because her interviews were after the girls disclosed their abuse to the police. Furthermore, in the

petitioner’s second criminal trial, Palmieri successfully

precluded DeLancy from discussing the details of the

abuse disclosed by A, but if he had argued that DeLancy’s interview was suggestive and tainted the subsequent investigation, DeLancy would have had to

describe at least some of the details of what A disclosed

in order to show which specific acts K had described,

and suggestive questions DeLancy had asked.

We begin with our standard of review for the habeas

court’s findings and conclusions. ‘‘In a habeas appeal,

this court cannot disturb the underlying facts found by

the habeas court unless they are clearly erroneous, but

our review of whether the facts as found by the habeas

court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.) Williams v.

Commissioner of Correction, 142 Conn. App. 744, 752,

68 A.3d 111 (2013).

‘‘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. . . . When a [petitioner]

complains of the ineffectiveness of counsel’s assistance, the [petitioner] must show that counsel’s representation fell below an objective standard of

reasonableness. Strickland v. Washington, 466 U.S. 668,

687–88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A

[petitioner’s] claim that counsel’s assistance was so

defective as to require a reversal of the conviction . . .

has two components. First, the [petitioner] must show

that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a

[petitioner] makes both showings, it cannot be said that

the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.

. . . Smith v. Commissioner of Correction, 141 Conn.

App. 626, 632, 62 A.3d 554 (2013).’’ (Citations omitted;

internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 142 Conn. App. 752.

‘‘Judicial 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 atthe 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 defendant must overcome the presumption

that, under the circumstances, the challenged action

might be considered 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.

. . . Thus, a court deciding an actual ineffectiveness

claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.’’ (Citations

omitted; internal quotation marks omitted.) Strickland

v. Washington, supra, 466 U.S. 689–90.

‘‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made

after less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.’’

Id., 690–91.

With these legal standards in mind, we turn to the

petitioner’s claim. Preliminarily, the petitioner challenges several factual findings of the habeas court. He

claims that the court’s findings that trial counsel had a

reasonable expectation that he would be able to present

evidence important to his theory and that Mantell had

‘‘only minor issues’’ regarding the conduct of B’s and

C’s interviews were clearly erroneous.

‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed [on appeal] unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or

evaluate the credibility of the witnesses. . . . Rather,

we must defer to the [trier of fact’s] assessment of

the credibility of the witnesses based on its firsthand

observation of their conduct, demeanor and attitude.

. . . The habeas judge, as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight

to be given to their testimony. . . . Thus, the court’s

factual findings are entitled to great weight. . . . Furthermore, [a] finding of fact is clearly erroneous when

there is no evidence in the record to support it . . .

or when although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.’’ (Citations omitted; internal quotation

marks omitted.) Orcutt v. Commissioner of Correction,

284 Conn. 724, 741–42, 937 A.2d 656 (2007).
None of the petitioner’s challenges to the factual findings have merit. The record and memorandum of decision reflect that the petitioner was tried twice. Palmieri

thus had the opportunity to test the effectiveness of

the evidence upon which he based his theory of defense,

which rehearsal, by itself, provides record evidence

to support the habeas court’s finding. The petitioner’s

challenge to the habeas court’s finding that Mantell had

‘‘only minor issues’’ regarding B’s and C’s interviews is

similarly unfounded; Mantell testified only briefly about

the issues with the interviews of each girl, and discussed

the issues in a relatively cursory fashion and in considerably less depth than he did for A’s interviews. There

was evidence to support the habeas court’s finding that

Mantell’s issues with these interviews were minor, and

its finding to that effect was not clearly erroneous.

Turning to the main substance of the petitioner’s

claim, that the habeas court improperly concluded that

Palmieri’s decision not to pursue a suggestive interview

defense constituted ineffective assistance of counsel,

we are similarly not persuaded. In its thorough and

well reasoned opinion, the habeas court recounted the

numerous pitfalls along the road not taken, which we

have summarized previously in this opinion. As discussed in more detail previously, the suggestive interview defense would have left unexplained, and not been

consistent with, the testimony of L and D, to whom A

disclosed almost a year before she disclosed to

DeLancy, and neither of whom was involved in A’s

disclosure to DeLancy. Furthermore, if the interviews

had been suggestive, one would have expected A’s presence to pressure the other two girls to disclose during

their interviews while A was there, but in fact, they did

not do so at that time. Both girls also had subsequent

interviews with Brinkman which, in the habeas court’s

estimation, complied with Mantell’s described best

practices. Finally, as noted previously, pursuing a suggestive interview defense likely would have resulted

in the jury hearing certain damaging testimony from

constancy of accusation witnesses, including from

Gambardella, who A spoke with alone and told

unprompted that her father was having sex with her.

The petitioner has not ‘‘overcome the presumption

that, under the circumstances, the challenged action

might be considered sound trial strategy.’’(Internal quotation marks omitted.) Strickland v. Washington, supra,

466 U.S. 689. Examining the situation from Palmieri’s

perspective before the second criminal trial, pursuing

the strategy of the first trial—that the allegations of

sexual abuse were false and were the product of the

influence of A’s friends—did not fall below an objective

standard of reasonableness. See id., 688. Palmieri’s

choice of strategy at the outset of the second trial was

not unreasonable. He had marshaled evidence to support a theory that the allegations were false, including
evidence that as early as December, 1996, H and K

were making unfounded complaints to the department

regarding the petitioner. He intended to argue to the

jury that these earlier complaints, in conjunction with

K’s extensive participation in A’s initial interview with

DeLancy, led to A’s fabrication, which B and C corroborated with their own so that others would believe A.

The petitioner nonetheless argued that however reasonable it was for Palmieri to pursue this strategy in

the first trial, he was deficient for having done so in

the second, because he had lost the element of surprise

and therefore should have anticipated that the state

would be ready to counter the same defense. In support

of this argument, the petitioner points out that the state

successfully persuaded the court to preclude much of

the evidence regarding H’s and K’s complaints that

Palmieri used in the first trial. The petitioner further

observes that the victims were better witnesses in the

second trial than in the first.

We are not persuaded. The fact that the court made

these rulings during trial does not mean that Palmieri

reasonably should have anticipated them at the outset.

Indeed, recalling the first trial, in which the evidence

precluded in the second trial was admitted, Palmieri

could reasonably have expected similar rulings. The

petitioner also had available the transcripts of the first

trial to control or impeach witnesses who testified differently than they had in the first trial.

In his appellate brief, the petitioner relies heavily

upon cases that discuss trial counsel’s failure to call

expert witnesses in sexual assault cases. See, e.g.,

Michael T. v. Commissioner of Correction, 307 Conn.

84, 100–101, 52 A.3d 655 (2012); Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 76, 943 A2d

1148 (2008); Lindstadt v. Keane, 239 F.3d 191 (2d Cir.

2001). The petitioner’s reliance is misplaced, however,

because these cases merely make the point that ‘‘in

certain instances, the employment of an expert for the

defense may be constitutionally mandated by the facts

and surrounding circumstances of the case . . . .’’

Michael T. v. Commissioner of Correction, supra, 101.

Moreover, in Michael T., the expert witness in issue

was found not to be constitutionally required. Id. Under

the facts of this trial, however, an expert likely would

have provided testimony substantially similar to that

given by Mantell in the habeas trial, and even with such

expert testimony, the theory of defense still would have

been vulnerable to the same weaknesses described by

the habeas court. Palmieri’s performance was not deficient for having chosen the strategy that he did.

II

The petitioner further claims that the habeas court

erred by holding that the petitioner’s initial habeas

counsel did not provide ineffective assistance of coun-
sel by failing to raise the claim that Palmieri mischaracterized testimony of the allegations and elicited

additional damaging testimony during his cross-examination ofA. Specifically, the petitioner argues that Palmieri brought out that A’s abuse began in the fourth grade,

rather than the fifth, as she had initially testified on

direct examination; that Palmieri elicited that A’s abuse

occurred with a certain frequency, after she initially

had not testified to any frequency; that Palmieri elicited

that the petitioner requested and/or performed additional types of sexual abuse on A and C; and finally,

that Palmieri sought to elicit that A disclosed abuse to

both H and K, after she had initially testified to having

disclosed to K only. We disagree.

The following facts, as found by the habeas court,

and procedural history are relevant to this claim. In the

petitioner’s second criminal trial, A testified on direct

examination that the petitioner began sexually abusing

her when she was in the fourth grade. She then testified

that he started to have penile/vaginal sex with her when

she was in the fifth grade. Later on during direct examination, A testified that she had oral sex with the petitioner, but described vaginal sex when she did so. Later

still on direct examination, however, she testified that

the petitioner put his penis in her mouth once.

On cross-examination, Palmieri elicited that K had

told Remillard that the petitioner had been having sex

with A once per week or once per month since the fifth

grade. Palmieri also asked A if she had told someone

at the clinic that she did not have oral sex with the

petitioner, to which A answered that she could not

recall. Palmieri also brought out the fact that A had

previously claimed that the petitioner had put his penis

on her buttocks, which A denied was untrue despite

not having repeated the claim on direct examination.

Palmieri revisited these subjects during cross-examination of Murphy and Leventhal. During cross-examination of Murphy, Palmieri elicited testimony from

Murphy that A had told Murphy that the petitioner

wanted A to perform oral sex on him, but that it never

happened. Palmieri also brought out that A told Murphy

that she had sex with the petitioner ‘‘once a month or

once a week, like 20 or 10 times.’’ He also brought out

that A told Murphy that the petitioner had performed

anal sex on A thirteen days prior to Murphy’s physical

examination of her, but that this examination found

no physical evidence of this. During Palmieri’s crossexamination of Leventhal, Palmieri tried to establish

that if the petitioner had been having vaginal intercourse with A once per week over a three year period,

A’s hymen would be much more damaged than what

was revealed during her physical examination.

During closing arguments, Palmieri highlighted the

inconsistencies in A’s testimony regarding how frequently she claimed to have been abused. Palmieri
argued that at the extreme, A’s testimony could be

understood to mean that the petitioner had sex with

her once per week over three years—or 150 times. The

habeas court found that Palmieri ‘‘probably misstated

the evidence’’ by suggesting that the sexual intercourse

started in the fourth, rather than the fifth grade, such

that the number of occurrences would have been closer

to 100 than 150.

As to C, the habeas court found that during her direct

examination, she testified that, on multiple occasions,

the petitioner had put his hand down her shirt or pants

and touched her, and that when she tried to stop him,

he pulled her back on his bed by her hair. On crossexamination, Palmieri elicited that more than once after

A’s disclosure, C had denied having been abused. He

also got her to admit that the petitioner had never

inserted his finger into her vagina. Palmieri then got

her to admit that she had told Brinkman that the petitioner had put his penis on her vagina. On cross-examination of Natale about C’s disclosure, Palmieri brought

out that C told Natale that any contact with the petitioner occurred on the outside of her clothing.

The standard of review and law regarding ineffective

assistance of counsel are set forth previously in this

opinion.

The elicitations by Palmieri with which the petitioner

takes issue do not constitute deficient performance,

and, accordingly, Visone’s failure to raise them in the

petitioner’s initial habeas action also was not deficient.

Palmieri’s strategy, devised after noting the various

changes in the victims’ accounts of what had transpired,

was to impeach the victims’ testimony through prior

inconsistencies or denials. His questions, which highlighted discrepancies in the details of the acts of which

they accused the petitioner, or outright denials thereof,

furthered this strategy. Asking these questions was,

therefore, precisely the type of strategic choice that

Strickland deemed ‘‘virtually unchallengeable.’’ Strickland v. Washington, supra, 466 U.S. 690.

As to Palmieri’s misstatement of the evidence of how

many acts of sexual intercourse A experienced, the

error was not a significant one, and indeed, Palmieri

had legitimate reasons, which were consistent with his

strategy of impeachment, forfocusing on the large number of alleged acts. He used the number to contrast A’s

claims of once-weekly abuse over an extended period

to Remillard and Murphy with her statement to Murphy

that she had sex with the petitioner 10 or 20 times.

Palmieri also used this contrast to undermine the credibility of Murphy and Leventhal’s medical findings.

Again, dwelling on this number was a strategic decision,

and Palmieri’s performance did not fall below an objective standard of reasonableness. See Strickland v.

Washington, supra, 466 U.S. 688.
III

The petitioner also claims that the habeas court erred

by overruling the petitioner’s objection to Gambardella’s testimony about statements made to him by A, who

did not testify. Specifically, the petitioner argues that

the statements were hearsay and, as the habeas court

had acknowledged, were not within any exception, and

that even if they were not barred by the rule against

hearsay, they were nonetheless inadmissible because

they were not relevant to rebut the petitioner’s theory

of defense at the habeas trial. The respondent does not

challenge either of these arguments directly, but instead

counters that the petitioner opened the door to the

challenged testimony, or that the statements were

harmless because they were cumulative of other testimony. Although we agree with the petitioner that the

testimony was hearsay not within an exception, we

agree with the respondent that admitting the testimony

was harmless error.4

The following procedural history is relevant to this

claim. During the habeas trial, the petitioner called

Gambardella to testify. On cross-examination, the attorney for the respondent asked, ‘‘[I]t’s true that [A] in

fact claimed that her father was having sex with her,

right?’’ to which Gambardella responded ‘‘Correct.’’ At

this point, the petitioner’s counsel objected on the

grounds of hearsay. After some argument, during which

the court acknowledged that the testimony was not

admissible under any of the hearsay exceptions discussed, the court nonetheless admitted it into

evidence.5

‘‘To the extent a trial court’s admission of evidence

is based on an interpretation of the Code of Evidence,

our standard ofreview is plenary. For example, whether

a challenged statement properly may be classified as

hearsay and whether a hearsay exception properly is

identified are legal questions demanding plenary

review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’

by the trial court, and the trial court has no discretion to

admit hearsay in the absence of a provision providing

for its admissibility. . . . We review the trial court’s

decision to admit evidence, if premised on a correct

view of the law, however, for an abuse of discretion.’’

(Citations omitted.) State v. Saucier, 283 Conn. 207,

218, 926 A.2d 633 (2007).

‘‘An out-of-court statement offered to establish the

truth of the matter asserted is hearsay. . . . As a general rule, such hearsay statements are inadmissible

unless they fall within a recognized exception to the

hearsay rule.’’ (Internal quotation marks omitted.) Id.,

223; see Conn. Code Evid. § 8-1 (3) (hearsay is ‘‘a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish
the truth of the matter asserted’’); Conn. Code Evid.

§ 8-2 (such statements inadmissible unless within recognized exception).

The admitted testimony was hearsay because it consisted of out-of-court statements made by A to Gambardella, which were offered by the respondent to

establish the truth of the matter asserted therein. See

State v. Saucier, supra, 283 Conn. 223. Gambardella’s

testimony recited statements A made to him during

an interview conducted before the habeas trial. The

attorney for the respondent argued, albeit indirectly,

thatthe statements were offered to prove that Palmieri’s

performance was not constitutionally deficient, or,

alternatively, that because Gambardella’s testimony

also contained statements that would have incriminated

the petitioner, Palmieri’s failure to pursue a suggestive

interview defense through him did not prejudice the

petitioner.6

Furthermore, the testimony did not fall within the

exception for prior consistent statements, nor the

exception for constancy of accusation evidence. See

State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996).

Nor did it fall within any other recognized exception.

It was, therefore, not admissible, and the trial court

abused its discretion in admitting it.

The admission of the testimony was, however, harmless error. ‘‘When reviewing claims of error, we examine

first whether the trial court abused its discretion, and,

if so, we next inquire whether the error was harmless.

. . . When an error is not of constitutional magnitude,

the defendant bears the burden of demonstrating that

the error was harmful. . . . The proper standard for

review of a defendant’s claim of harm is whether the

. . . verdict was substantially swayed by the error.

. . . Accordingly, a nonconstitutional error is harmless

when an appellate court has a fair assurance that the

error did not substantially affect the verdict.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Payne, 303 Conn. 538, 552–53, 34 A.3d 370 (2012). In

this case, the petitioner cannot carry this burden. The

habeas court reviewed several days’ worth of testimony

from numerous witnesses, as well as a number of exhibits, including the transcripts from the petitioner’s two

criminal trials. The improperly admitted testimony was

cumulative of this evidence, some of which contained

testimony and other evidence of the petitioner’s acts

of abuse apart from her bare statement to Gambardella.

The facts in issue, furthermore, were the constitutional

adequacy of Palmieri’s legal representation, and, if that

representation were found to be deficient, whether that

deficiency prejudiced the petitioner. The voluminous

record of the proceedings below gives this court ‘‘fair

assurance that the error did not substantially affect’’;

(internal quotation marks omitted) id., 553; the habeas

court’s findings and conclusion.
The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the petitioner’s full name or to identify the victims or others through

whom the victims’ identities may be ascertained. See General Statutes

§ 54-86e.

1 The court granted the petitioner’s petition for certification to appeal.

See General Statutes § 52-470 (g).

2

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.

3 The petitioner was never charged with any wrongdoing to A’s third sister.

4

In light of our conclusion that the admission of Gambardella’s testimony

was harmless error, we need not and do not consider the petitioner’s additional contention that the testimony was irrelevant, or the respondent’s

related claim that the petitioner opened the door to its admission. Furthermore, the record reveals that the sole basis for the petitioner’s objection

at trial was hearsay. The petitioner did not object on the basis of relevance

and, accordingly, that claim is not preserved for our review. See Practice

Book § 60-5 (court not bound to consider claim unless ‘‘distinctly raised’’);

Council v. Commissioner of Correction, 286 Conn. 477, 498, 944 A.2d 340

(2008) (‘‘It is well established that [a] party cannot present a case to the

trial court on one theory and then seek appellate relief on a different one

. . . . For this court to . . . consider [a] claim on the basis of a specific

legal ground not raised during trial would amount to trial by ambuscade,

unfair both to the [court] and to the opposing party.’’ [Internal quotation

marks omitted.])

5 The court’s ruling was as follows: ‘‘Yeah, well the question is whether

you could have actually gotten this in at trial. But for the purposes of this

trial though without knowing exactly where the—the petitioner’s claim is

going on this, it may be relevant to the prejudice issue and for that reason,

I’m going to overrule the objection.

‘‘The witness can testify to it and I’ll consider . . . whether it relates to

undermining the claim of prejudice because I think that’s the only possible

thing it could be relevant to and then—and even then I’m still not convinced

that it would have come in. But for the purposes of this hearing, I’ll—I’ll

allow it.’’

6 The attorney for the respondent stated: ‘‘[To] allow the [petitioner] to

present [a] witness and then prevent the state from bringing out the harmful

testimony that that witness had to offer, especially when [the petitioner is]

challenging [Palmieri’s] representation for not putting forth that evidence,’’

whereupon the court interrupted him with its ruling. See footnote 5 of

this opinion.