text:
    ANTONIO A.
      v. COMMISSIONER OF CORRECTION
    (AC 33746)
    Bear, Keller and Schaller, Js.

      Argued January 8—
    officially released March 18, 2014

      Damon A. R. Kirschbaum, with whom, on the brief, was Jennifer B. Smith, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Gail P. Hardy, state’s attorney, and, on the brief, Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).

       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 victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

BEAR, J.

The petitioner, Antonio A., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred in denying his petition because his “constitutional right to the effective assistance of trial counsel, under the [s]ixth and [fourteenth [a]mendments to the United States [constitution, was violated.” We affirm the judgment of the habeas court.

The following facts, as set forth in the petitioner’s direct appeal; State v. Antonio A., 90 Conn. App. 286, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006); are relevant to the resolution of the petitioner’s appeal. “On the evening of August 12, 2001, the [petitioner] returned home from work. His daughter, the victim, who had become eight years old the previous day, was sleeping in the living room. The [petitioner] inserted his finger into the victim’s vagina two times. The victim later told her mother, who did not live with the [petitioner], what had happened and said that her vaginal area had become painful. Her mother took her to a physician, who discovered that the victim had a vaginal injury consistent with digital penetration. The state charged the [petitioner] with two counts of risk of injury to a child and two counts of sexual assault in the first degree. After a trial, the jury returned a verdict of guilty on all counts. The court also found the [petitioner] in violation of his probation, which had been imposed for a prior conviction of possession of narcotics. The court sentenced the [petitioner] to a total effective term of forty-four years incarceration, execution suspended after twenty-four years, followed by ten years probation and lifetime sex offender registration.” Id., 289. The petitioner appealed from the judgment of conviction, and this court affirmed the judgment of the trial court. The petition for certification to appeal from our affirmance was denied by our Supreme Court, and a petition for certification to appeal to the Supreme Court of the United States also was denied.

On October 16, 2009, the petitioner filed an amended petition for a writ of habeas corpus claiming that his criminal trial attorney had rendered ineffective assistance of counsel. The habeas court denied the petition following a trial, finding that counsel's “assistance was reasonable considering all the circumstances; he investigated the case, prepared for trial and employed reasonable trial strategies.” Thereafter, the court granted the petition for certification to appeal. This appeal followed.

The petitioner claims that his “constitutional right to the effective assistance of counsel, under the [s]ixth and [fourteenth [a]mendments to the United States [c]onstitution, was violated by his counsel’s failure to adequately cross-examine, impeach, and otherwise challenge the testimony of [1] the complainant, [2] Lisa Murphy-Cipolla, [the clinical child interview supervisor at Saint Francis Hospital and Medical Center in Hartford, who conducted the forensic interview of the victim] and [3] Wendy Witt, M.D. [the emergency room physician who examined the victim at Lawrence and Memorial Hospital in New London]. Counsel also failed to present the testimony of a forensic psychologist (or other similar expert) with an expertise in investigating and assessing child sexual abuse allegations.” We are not persuaded.

“As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] ... [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ... A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 703-704, 23 A.3d 682 (2011).

I

The petitioner claims that counsel provided ineffective assistance by inadequately cross-examining, impeaching, and otherwise challenging the testimony of the victim, Murphy-Cipolla, and Witt. He argues that the victim provided some inconsistent information about exactly what had occurred and that counsel failed to confront her inconsistencies, that counsel failed to confront Murphy-Cipolla regarding her handling of the inconsistencies during the victim’s interview, that counsel failed to confront Murphy-Cipolla regarding her failure to follow her own protocol, and that counsel failed to confront Witt as to her interpretation of the medical evidence, which, in the petitioner’s view, could have provided evidence that might have exonerated him. We are not persuaded.

“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. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 798-99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).

After carefully reviewing the record, we agree with the habeas court’s conclusion that the petitioner failed to demonstrate that trial counsel’s questioning of the victim, Murphy-Cipolla, or Witt constituted deficient performance. Our review of the trial transcripts, which were provided as an exhibit at the habeas trial, does not reveal any inconsistent testimony on the part of the victim during the criminal trial, nor does the petitioner point to any such inconsistencies during that trial. The alleged inconsistencies occurred during Murphy-Cipol-la’s interview of the victim. During the habeas trial, however, trial counsel explained that during cross-examination of the victim at the petitioner’s criminal trial, he did not want to engage her regarding the specifics of the sexual assault because he believed it would not have been looked upon favorably by the jury, and he did not want to open the door to the videotape of the forensic interview being shown to the jury because it showed an eight year old girl explaining that her father had abused her sexually. Counsel explained: “I didn’t want that interview in front of the jury. I don’t think this child came off in a way that would do anything other than harm our case.” He also testified that the reason he did not engage Murphy-Cipolla about possible inconsistent statements by the victim during Murphy-Cipolla’s interview of her was because the victim already had testified at the petitioner’s criminal trial and he believed that Murphy-Cipolla could explain away the inconsistencies, possibly testify as to why the inconsistencies may have occurred, and that then the jury may have viewed her as an expert in this area. He especially did not want to do this when there was physical evidence to support the victim’s allegations. As to the petitioner’s claim that trial counsel was deficient for not confronting Murphy-Cipolla about her failure to follow her own protocols, at the petitioner’s habeas trial, Murphy-Cipolla testified that protocols only serve as guidelines to be used during an interview, that every child is different, and that investigators must use professional judgment.

As to the petitioner’s allegation that trial counsel failed to cross-examine Witt adequately regarding medical evidence that could have been used to exonerate him, he has not directed us to any evidence that was introduced during his habeas trial that was not introduced during the criminal trial. Furthermore, the petitioner’s criminal trial attorney explained that he tried to keep the testimony of these witnesses focused because he did not want to do anything that could open the door to questions about the petitioner’s prior conduct in light of previous allegations of sexual assault made by another of his daughters ten years earlier.

“An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy.” (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn. App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Accordingly, although the petitioner may be discontented with trial counsel’s tactics, we conclude that he has failed to overcome the presumption that trial counsel’s cross-examination of these witnesses represented a sound trial strategy.

n

The petitioner also claims that counsel provided ineffective assistance by failing to present the testimony of a forensic psychologist or psychiatrist with expertise in investigating and assessing child sexual abuse allegations. He argues: “It was objectively unreasonable for counsel to have failed to present [this] testimony . . . to show the inadequacies of the prosecuting authority’s investigation, and to show a highly plausible alternative innocent explanation for the allegations that the prosecuting authority failed to consider, investigate, and rule out.” We conclude, as did the habeas court, that the petitioner has failed to demonstrate that counsel’s performance was deficient.

“We begin by noting that there is no per se rule that requires a trial attorney to seek out an expert witness. Thompson v. Commissioner of Correction, 131 Conn. App. 671, 696, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011). In Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008), however, this court noted that in some cases, ‘the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.’ Id., 76. To support this proposition, this court, in dicta, cited to other Connecticut cases and to the conclusion in Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), that ‘failure to consult [an] expert on sexual abuse of children constituted inadequate assistance.’ Peruccio v. Commissioner of Correction, supra, 76.” Stephen S. v. Commissioner of Correction, 134 Conn. App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).

In Stephen S., after analyzing relevant case law, we concluded that “cases involving child sexual abuse may, depending on the circumstances, require some pretrial investigation and consultation with expert witnesses.” Id., 815. This can be true of both medical experts and psychological experts. Id., 815, 817. Where trial counsel has consulted with such experts, however, but made the tactical decision not to produce them at trial, such decisions properly may be considered strategic choices. “Furthermore, trial counsel is entitled to make strategic choices in preparation for trial. See Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992), quoting Strickland v. Washington, supra, 466 U.S. 690, 689 (‘strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable’ and ‘[t]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy’ . . . .” Stephen S. v. Commissioner of Correction, supra, 134 Conn. App. 817-18.

The petitioner contends that trial counsel was deficient for failing to present the testimony of a forensic psychologist or psychiatrist in this case. During his habeas trial, he presented as his sole expert, David Mantell, a licensed clinical psychologist, who challenged Murphy-Cipolla’s interview techniques as incomplete and biased. Mantell, however, did not offer any evidence or expert opinion to challenge her substantive findings, or otherwise to explain how the alleged deficient interview techniques led Murphy-Cipolla to any incorrect conclusions. The petitioner’s trial attorney, moreover, testified at the habeas trial that during the criminal trial he reviewed the state’s file, the records of the Department of Children and Families, the forensic interview, medical reports from the hospital, including from Witt, the diagnostic interview report, the intake narrative, police reports, statements, the videotape of the victim’s interview, and the photographic evidence. Our review of the transcript of the habeas trial reveals that trial counsel was not asked why he did not have a forensic psychologist or psychiatrist testify on the petitioner’s behalf. He was asked only whether he had asked such a person to review the videotape of the victim’s forensic interview with Muiphy-Cipolla. Although trial counsel testified that he did not recall having a forensic psychologist review the videotape of the victim’s forensic interview, he explained that he had considerable training in the area of sexual assault, having attended many seminars and training sessions, and having read books and numerous journal articles. He also explained that he has doctors whom he retains in these matters to go over what is, and what is not, problematic. He further testified that he reviewed the photographs of the victim’s culpascope examination early in the case because he had “people [he could] consult with on these things discreetly to understand what the imaging is, the technology behind it, and what [he was] looking at, and what [he] should be careful about” and that he did discuss this with professionals. He testified that he consulted a pediatrician, a gynecologist and a radiologist. He also explained that he did not have a forensic psychologist or psychiatrist review the videotape in this case because the interview occurred two weeks after the initial disclosure, and he believed that it was the initial disclosure that was important in this case. He testified that what occurred during the interview with Murphy-Cipolla “didn’t motivate what [the victim] said to Dr. Witt on the date of that exam. That is why [he did not have it reviewed]. It would not have provided [him] more evidence.” The petitioner has not pointed us to any additional evidence that could have been presented by a forensic psychologist or psychiatrist in his criminal trial that would have buttressed his defense, and any such expert would have been subject to cross-examination by the prosecution.

In this case, the petitioner has not demonstrated that trial counsel’s decisions were anything other than sound trial strategy. We conclude, therefore, as did the habeas court, that the petitioner has failed to demonstrate that counsel’s performance was deficient.

Ill

In addition to finding that counsel’s performance was not deficient, the habeas court concluded that the petitioner failed to prove that he was prejudiced by any alleged deficiency. Consistent with the decision of the habeas court, we conclude that even if we were to agree with one or more of the petitioner’s allegations of deficient performance, he, nonetheless, has failed to prove prejudice.

In this case, during the petitioner’s criminal trial, there was evidence that the petitioner’s eight year old daughter told her mother that the petitioner had hurt her by digitally penetrating her vagina twice when she was staying at the home of the petitioner, who, at that time, was residing with one of his older daughters (the victim’s sister) and her children, at least one of whom was approximately the same age as the victim. The victim’s mother also testified that she had experienced no visitation or custody issues with the petitioner and that the victim “was crazy for her dad” before the sexual assault. The victim reiterated her sexual abuse allegations to an emergency room physician (Witt), a social worker from the Department of Children and Families (Awilda Melendez), and a forensic interviewer (Murphy-Cipolla), all of whom testified at the petitioner’s criminal trial, and all of whom, as constancy of accusation witnesses, corroborated the victim’s statements, giving essentially the same details of the sexual abuse. Additionally, there was medical evidence, consistent with digital penetration, that was introduced at the petitioner’s criminal trial.

After reviewing the record from the habeas trial, we conclude that the petitioner failed to demonstrate with a reasonable probability that the testimony of a forensic psychologist or psychiatrist, or that additional cross-examination of the victim, Murphy-Cip olla or Witt likely would have resulted in a different outcome at his criminal trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also contends in his appellate briefs that there was a retraction by the victim near the end of this videotaped interview. He sets forth the following in his main appellate brief: “Later in the interview, the [victim] said either ‘he never touched me or he never touch’ed.’ Murphy-Cipolla thought that the [victim] said that the petitioner ‘never touch’ed,’ but acknowledged she could be wrong. The [victim] might have said that the petitioner ‘never touched her.’ ” (Footnote omitted.) In his reply brief, he contends: “At the end of the forensic interview, the [victim] retracted the allegations altogether . . . .” (Emphasis in original.) During oral argument before this court, the petitioner’s appellate attorney forcefully emphasized the alleged significance of this alleged retraction or recantation by the victim during the interview. When pointedly asked by Judge Keller during rebuttal argument whether Murphy-Cipolla testified that the victim had recanted at the end of the interview, the petitioner’s appellate attorney clearly answered: “Yes.”
      A full review of the habeas trial transcript, however, reveals that during cross-examination by the petitioner’s attorney, Murphy-Cipolla testified, after a portion of the videotape was played twice to refresh her recollection, that she was not sure what the victim, whom she described as “a Spanish-speaking child,” was saying on that specific portion of the tape, but that it sounded like “he never touch’ed.” She admitted that she did not follow up on that statement during the interview.
      Although the videotape of the forensic interview was marked only as an exhibit for identification at the habeas trial; see Daigle v. Metropolitan Property & Casualty Ins. Co., 257 Conn. 359, 364, 777 A.2d 681 (2001) (“[t]he purpose of marking an exhibit for identification is to preserve it as part of the record” [internal quotation marks omitted]); we have reviewed the relevant portion of the videotape only for the context of the alleged recantation, which we discern as follows:
      “[Murphy-Cipolla]: Do you have any worries about your dad touching some other kid like this?”
      “[The Victim]: Yeah.
      “[Murphy-Cipolla]: Tell me about that.
      “[The Victim]: He never touch’ed—but I think he touched my cousin.”

       There is no claim that trial counsel was ineffective for not offering this videotaped interview into evidence.

       Dr. Witt explained at the petitioner’s criminal trial that a culpascope “is a magnification machine that’s . . . attached to a video camera, and it allows better lighting and higher magnification so you can see areas that are not well lit and areas that light show injury that you wouldn’t see well with the naked eye.” Witt used the culpascope to examine the victim’s genital area.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    ROBERT ROUSSEAU v. MADELEINE PERRICONE
    (AC 34957)
    Beach, Bear and West, Js.

      Argued November 19, 2013—
    officially released March 25, 2014

      Daniel J. Klau, for the appellant (defendant).

      Daniel D. Dwyer, with whom were Robert Rousseau, self-represented, Jon L. Schoenhom and, on the brief, Timothy J. Fitzgerald, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this marital dissolution action, the defendant, Madeleine Perricone, challenges certain property distribution and orders entered by the trial court in its judgment dissolving her marriage to the plaintiff, Robert Rousseau. The defendant claims that the court erred (1) by failing to strike the testimony of a certain witness after he refused to answer certain questions on cross-examination; (2) by not ordering the plaintiff to repay to her $500,000 that the defendant had transferred to him; (3) in ordering her to release the plaintiff and to hold him harmless from a pending civil action she had commenced in the trial court; and (4) in imposing a sanction on her for a discovery violation that her attorney allegedly committed. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. The parties met in November, 2006, through a dating service and married in July, 2007. They did not commingle assets during the marriage except for investments in various cosmetics companies located in California.

The plaintiff had multiple business interests that predated his marriage to the defendant. His principal business was Preferred Display Incorporated (Preferred Display), which manufactured displays for the cosmetics industry and had a worldwide customer base. The parties initially resided in a modest four bedroom ranch style home in Glastonbury. The defendant later purchased a larger home on Drumlin Road in Glastonbury.

Prior to their marriage, the parties traveled to California and had business discussions with various persons in the cosmetics industry, including Harry Haralambus. The defendant invested approximately $2 million and the plaintiff invested approximately $2.5 million in California cosmetics companies. As of the last day of trial, neither the plaintiff nor the defendant had seen a return on their investments.

The court did not find any merit to the defendant’s claims that she made investments in the California cosmetics companies because of fraud, duress or undue influence on the part of the plaintiff. The court found that the investments were risky and that both the plaintiff and the defendant voluntarily made what turned out to be bad investments. The court also imposed a $25,000 sanction on the defendant for failure to comply with discovery orders. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court erred in failing to strike the testimony of Haralambus after he refused to answer certain questions on cross-examination. We disagree.

Haralambus testified on direct examination that he had interests in cosmetics companies in California. The plaintiff and the defendant had invested in at least one of the same companies. Haralambus wanted to enhance the value of the companies by combining them into a holding company. He testified that “[t]he holding company had been set up. However, the problem was that in order to complete the process, we had to have this discussion with each individual shareholder and get a decision from them as to whether they wanted to swap their stock in an individual entity with the appropriate amount of stock in the holding company. . . . [I]t was important to have everybody interested in the holding company, because that way, we could act in unity.” Haralambus testified that other investors in California were “on board” with the holding company idea. He stated that both the plaintiff and the defendant delayed making decisions. Haralambus indicated that he was “frustrate [d]” by being “put in this hold pattern by two very important shareholders.” He testified that the plaintiff damaged his chance of recovering on his investment when “he failed to vote ... to move forward.” He also testified that the defendant harmed her chance of recovering on her investment by failing, as did the plaintiff, “to move forward with what was agreed and arranged upon.”

On cross-examination, the following colloquy occurred:

“[The Defendant’s Counsel]: Do you have documents concerning the consolidation or merger of these entities?
“[Haralambus]: The proper final consolidation has not occurred, because it’s being held up by two shareholders or more. Correctly speaking, one shareholder, Madeleine, LLC. . . .
“[The Defendant’s Counsel]: Can you tell me which ones have?
“[Haralambus]: It’s confidential information.
“[The Defendant’s Counsel]: Your Honor, I—the witness has to be instructed to answer.
“The Court: You need to answer the question.
“[Haralambus]: I’d be breaching confidentiality agreements if I did.”

The defendant’s counsel argued that “[t]his is all about the decision by [the plaintiff] to call [Haralambus] to testify that because of [the defendant’s] refusal to cooperate and become part of a roll up into a holding company, that the whole thing is now unprofitable and that now . . . Haralambus is in trouble. And I have an opportunity here ... to check [Haralambus’] credibility to see whether or not what he’s saying to the court is credible.” The court suggested that Haralambus answer the following question: “Out of all the shareholders and investors that you have that you wanted to consolidate into this holding company, has everybody signed agreements to do so, but the two people sitting in the courtroom?” To which Haralambus answered in the negative. The court then asked: “So, it would be fair to say that the failure to consolidate everything into this holding company and the impact that it’s had on the business isn’t solely the result of these two people in this courtroom?” Haralambus answered: “That may well be so, Your Honor.” The defendant’s counsel informed the court that he wanted to know how many companies voted against consolidation into a holding company and which ones. Haralambus explained that those questions place him in a difficult position in which he is “losing the ability to defend myself and those companies from legal assault.” The defendant’s counsel agreed to address the question of the confidentiality agreement at a later date.

At his next court appearance, Haralambus was represented by counsel. Haralambus’ counsel requested that the court conduct an in camera review of the confidentiality agreement. The court did so. The defendant’s counsel again stated that he wanted to question Haralambus regarding the identity of the entities that had not wanted to consolidate, because such testimony “impeaches the witness’ testimony further.” The court stated: “He’s already said that there are other entities or people that did want to roll up. You’ve made your point.” The court concluded that the agreement was “between people who are not part of this case, not present in this courtroom, and they’re entitled to their confidentiality. Additionally, the court’s going to make a finding that there is no relevance of this to the present case.” The defendant’s counsel orally moved for a mistrial and to strike Haralambus’ testimony. He argued that the court’s ruling that the confidentiality agreement barred Haralam-bus from disclosing the identities of the other entities involved in the consolidation effort adversely affected his ability to cross-examine Haralambus. The corut denied both motions.

The defendant argues that “[b]eyond the parties themselves, there is no witness more central to the financial shenanigans in this case than . . . Haralam-bus. . . . The plaintiff offered the testimony of Hara-lambus to shift blame for the defendant’s loss of her investment away from Haralambus’ and the plaintiffs financial shenanigans and onto the defendant for refusing to participate in the consolidation or ‘roll up’ of the individual companies into a single holding company, which allegedly would have enhanced the overall value of the companies. . . . Haralambus testified on direct examination that all of the investors had agreed to the consolidation of the cosmetic companies into a holding company except the defendant, and that her refusal was responsible for the lack of financial success of the enterprise.” (Emphasis omitted.) The defendant argues that the court’s failure to permit cross-examination on a “critical issue” was erroneous and deprived her of her due process rights.

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate inquiry constitutes an abuse of discretion.” (Internal quotation marks omitted.) Corriveau v. Corriveau, 126 Conn. App. 231, 236-37, 11 A.3d 176, cert. denied, 300 Conn. 940, 17 A.3d 476 (2011).

The court did not abuse its discretion in not permitting inquiry into the identity of other investors in the California cosmetics companies venture. Testimony was elicited from Haralambus that there were persons or entities other than the parties that did not agree to consolidate, and Haralambus agreed that it “may well be” that the failure to consolidate was not solely the result of the parties’ actions. The identity of the other investors that were not in favor of consolidation was not material to the issue of the defendant’s claim of financial misconduct on the part of the plaintiff or to any impeachment of the witness. Furthermore, the cross-examination of Haralambus was extensive and is reported on more than 150 pages of transcript. It covered a variety of issues involving the “roll up” and other financial aspects of the California cosmetics companies venture. We conclude that the court did not abuse its discretion in not permitting inquiry into the identities of other investors involved in the consolidation discussions.

II

The defendant next claims that the court erred by not ordering the plaintiff to repay $500,000 that she had transferred to him. We disagree.

“We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. ... In making those determinations, we allow eveiy reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Loughlin v. Loughlin, 93 Conn. App. 618, 624, 889 A.2d 902, aff'd, 280 Conn. 632, 910 A.2d 963 (2006).

The court found that the plaintiff began investing in the California cosmetics companies in August, 2008, and that most of the money had been transferred from the plaintiffs checking account. The court found that two sources of the deposits into the plaintiffs checking account, in turn, were wire transfers from the defendant’s UBS account in the amount of $250,000 each. The court did not find any basis for the defendant’s claim that she made investments in the California cosmetics companies because of fraud, duress or undue influence on the part of the plaintiff. The court emphasized that both parties had been warned that the investments were risky and that neither had realized a return on the investments as of the last day of trial. The court further found that the defendant “blamed her husband and scores of others for her decisions and took no personal responsibility.”

The defendant claims that she did not authorize the wire transfers into the plaintiffs account and that, “[i]n a calculated and convoluted manner,” the $500,000 was transferred through various companies and ended up in the hands of Haralambus. She concludes that “[t]he plaintiff was clearly double dealing with Haralambus to the disadvantage of the defendant . . . Haralambus got his money, the plaintiff got his investment and [the defendant] lost her money.”

The defendant’s interpretation of events was not what was found by the trial court. The court’s finding that the $500,000 was part of the defendant’s knowing investment in the California cosmetics companies venture was not clearly erroneous. See, e.g., Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003) (trial court’s factual findings reviewed under clearly erroneous standard). The court did not abuse its discretion in declining to award to the plaintiff the $500,000 that she had invested in a business venture.

IH

Prior to the trial in this action, the defendant had initiated a separate action against the plaintiff, Preferred Display and others. She claimed to have been harmed by essentially the same financial transactions that were subjects of dispute in the present action. The defendant claims, in this appeal, that the court erred in ordering her to release the plaintiff and to hold him harmless regarding the pending civil action in the trial court. We disagree.

The question central to the resolution of this issue is whether the pending civil action is “property” subject to distribution under General Statutes § 46b-81. Our standard of review of claims involving statutory interpretation is plenary. See Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998).

The trial court stated that it had “examined the civil suit filed by the defendant against the plaintiff, [Preferred Display] and numerous others. The allegations raised against the plaintiff and [Preferred Display] are more specific and detailed but essentially the same allegations raised by the defendant in the dissolution action.” The court determined that pursuant to Lopi-ano, the civil action was an asset that the court could properly consider in the mosaic of its property division. The court ordered that “[t]he defendant shall release and hold the plaintiff and his company [Preferred Display] indemnified and harmless from any and all claims of action pending in Hartford Superior Court captioned Perricone v. Rousseau, bearing docket number HHD-CV-11-6027402-S. In addition, the defendant shall be responsible for 100% of [the] plaintiffs legal fees in defending the civil action if [the] plaintiff and/or his company remain parties to that action.”

In Lopiano v. Lopiano, supra, 247 Conn. 363, our Supreme Court held that a personal injury award is a property interest encompassed within the meaning of “property” under § 46b-81 and therefore available for distribution in a marital dissolution action. In reaching this conclusion, the court examined the definition of “property” under § 46b-81. Id., 363-66. “The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other. ... In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider” various factors relevant to the property distribution. (Internal quotation marks omitted.) Id., 363-64. “There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” Id., 364. In defining the term “property” in Lopiano, our Supreme Court stated: “Rather than narrow the plain meaning of the term property from its ordinarily comprehensive scope, in enacting § 46b-81, the legislature acted to expand the range of resources subject to the trial court’s power of division, and did not intend that property should be given a narrow construction. . . . [0]ur broad definition of property was not entirely without limitation, and that property under § 46b-81 includes only interests that are presently existing, as opposed to mere expectancies.” (Citations omitted; internal quotation marks omitted.) Id., 365-66.

Our Supreme Court in Mickey v. Mickey, 292 Conn. 597, 618-19, 974 A.2d 641 (2009), further explained: “The legislature has not seen fit to define [the] critical term [property within the meaning of § 46b-81], leaving it to the courts to determine its meaning through application on a case-by-case basis. Neither § 46b-81 nor any other closely related statute defines property or identifies the types of property interests that are subject to equitable distribution in dissolution proceedings. ... As we noted previously, this court has generally taken a rather broad and comprehensive view of the meaning of the term property for purposes of equitable distribution. . . . We have not erased altogether, however, the limitations inherent in the term. We continue to recognize that the marital estate divisible pursuant to § 46b-81 refers to interests already acquired, not to expected or unvested interests, or to interests that the court has not quantified. . . . Our cases thus have generally divided the various contested property interests under § 46b-81 by characterizing them as either presently existing and enforceable and, therefore, distributable ... or mere expectancies immune from equitable distribution.” (Citations omitted; internal quotation marks omitted.)

The cause of action in Perricone v. Rousseau, supra, Superior Court, Docket No. CV-11-6027402-S, is “property” for the purpose of § 46b-81. “There is no doubt that a right in action, [when] it comes into existence under common-law principles, and is not given by statute as a mere penalty or without equitable basis, is as much property as any tangible possession . . . .” (Internal quotation marks omitted.) Silver v. Silver, 112 Conn. App. 145, 150, 151 A. 524 (1930); see also Lopiano v. Lopiano, supra, 247 Conn. 370 (right of action characterized as property under § 46b-81). “The value of the chose in action, on the other hand, determined at least in part by the party’s chances of prevailing, may be unknown, and, indeed, the action may turn out to be worthless. Nevertheless, that fact is irrelevant to its classification as a property interest. See, e.g., Bender v. Bender, [258 Conn. 733, 749-50, 785 A.2d 197 (2001)] (classification stage distinct from valuation stage in analyzing potential interests for equitable distribution).” (Emphasis omitted; internal quotation marks omitted.) Mickey v. Mickey, supra, 292 Conn. 624 n.20; see also Massa v. Nastri, 125 Conn. 144, 147, 3 A.2d 839 (1939) (“[a] right of action . . . is a vested property interest, before as well as after judgment”).

As discussed previously, Lopiano mandates a three stage inquiry. The first issue is whether the item in question is properly characterized as property. If it is property, the next issues are valuation and equitable distribution. The remaining issues are easily resolved. In the present case, the court had no need to resolve the issue of valuation, because no proceeds of the civil action could flow directly or indirectly from the plaintiff to the defendant pursuant to the court’s order. If, on the other hand, the defendant should recover any proceeds independently from any defendant other than the plaintiff or Preferred Display in the civil action, she would be entitled to keep for herself all of those assets. Similarly, the court did not abuse its discretion in the distribution of the proceeds of the right of action. Anything the defendant could recover from third parties was hers; nothing was to come from the plaintiff and he was to be made whole for any future litigation costs regarding the civil action. In light of the court’s determination that there had been no financial manipulation, which finding is not clearly erroneous, the order regarding the civil case was well within the court’s discretion and served to maintain the status quo of the overall property mosaic.

Finally, the defendant argues that even if the pending civil action was property for purposes of § 46b-81, the order at issue was not a property distribution order because it did not transfer title or ownership of property from the defendant to the plaintiff. We disagree. Most, if not all, divisions of property pursuant to § 46b-81 leave some property in the hands of its owner. Although some property may be transferred from one spouse to the other, § 46b-81 does not require that to occur in all cases. The order concerning the civil action preserved the status quo regarding the court’s other orders concerning the subject property and avoided what the court viewed as an inequitable result. There was no abuse of discretion.

IV

The defendant last claims that the court erred in imposing a sanction of $25,000 in attorney’s fees for a discovery violation that was allegedly committed by her attorney. The defendant argues that (1) the court’s finding of a discovery violation on the part of her attorney was clearly erroneous; (2) even if that finding was not clearly erroneous, the court erred in imposing a sanction on the defendant because of the alleged conduct of her attorney in not producing a computer disc to the plaintiff; and (3) the $25,000 sanction imposed had no basis in the evidence. We disagree.

“[T]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.” (Internal quotation marks omitted.) Berzins v. Berzins, 306 Conn. 651, 657, 51 A.3d 941 (2012). One limited exception to that rule in dissolution actions “provide [s] a trial court with the discretion to award attorney’s fees to an innocent party who has incurred substantial attorney’s fees due to the egregious litigation misconduct of the other party when the trial court’s other financial orders have not adequately addressed that misconduct.” (Internal quotation marks omitted.) Id., 658, quoting Ramin v. Ramin, 281 Conn. 324, 351, 915 A.2d 790 (2007). A trial court has “the discretion to award attorney’s fees to a party who incurs those fees largely due to the other party’s egregious litigation misconduct . . . .” Ramin v. Ramin, supra, 353. The term “egregious litigation misconduct” is limited to discovery misconduct. Berzins v. Berzins, supra, 658.

The court noted that the plaintiff began requesting discovery from the defendant in 2011, and that the court entered discovery orders in March, June, July and September, 2011. The court found that the defendant failed to comply with these court orders, in that attorney billing records and certain bank records were not fully produced. The court noted that the defendant’s attorney had testified that a UBS computer disc containing financial records was not produced because, even though the requested material had been clearly described, the attorney did not think that it contained material that the plaintiff wanted. The court stated that “[i]t is not up to the defendant to decide what information is relevant to the preparation of the plaintiffs case.” In September, 2011, a fine of $50 per day, doubling daily, was imposed on the defendant for noncompliance. The trial court noted that because the orders were never fully complied with through the end of the trial, the sanction would be more than the defendant’s net worth. The court found that the defendant had had the ability to comply with the court orders regarding discovery, that the defendant and her lawyers were fully aware of the orders, and that they wilfully failed to comply with them. The court imposed a sanction of $25,000 on the defendant for failing to comply with the discovery orders.

First, the defendant argues that the court erred in finding that her prior attorney, Carlo Forzani, committed a discovery violation. In support of her argument, she cites the testimony of Forzani and argues that, once Forzani was aware that the plaintiff wanted the UBS computer disc, he provided it to him. Although the court, as trier of fact, can reject any portion of testimony it deems not credible; see Jay v. A & A Ventures, LLC, 118 Conn. App. 506, 514, 984 A.2d 784 (2009); Forzani’s testimony was not necessarily inconsistent with the court’s finding that some documents were not produced in a timely fashion after the court had ordered them to be produced. Additionally, some documents were never produced despite the fact that they were available. In the portion of testimony cited by the defendant, Forzani stated that it never occurred to him to give the plaintiff the UBS computer disc, and, after the court ordered him to do so, he encountered a delay because “Staples didn’t want to do all this work.” Further, the defendant contests only the court’s finding of a discovery violation with respect to the UBS computer disc, but apparently does not contest the finding with respect to the attorney billing records, Citizen Bank records, and Valley Bank records, which the court also determined were not fully produced despite the court’s clear order. Accordingly, we conclude that the court’s finding of a discovery violation was not clearly erroneous.

Second, the defendant argues that, even if the court’s finding of a violation was not erroneous, the violation was not attributable to her and “[t]he trial court expressly found that Attorney Forzani, not the defendant, decided not to produce the computer disc to the plaintiff.” (Emphasis in original.) The court’s finding of a violation did not rest solely on the issue of the UBS computer disc, but as stated previously, concerned other documents, such as bank account records, as well. The court’s finding of a violation as to these remaining items remains unchallenged. Furthermore, regardless of the court’s finding that Forzará did not think that the plaintiff wanted the UBS computer disc, the court’s finding that “[t]he defendant and her lawyers were fully aware of the court orders and wilfully failed to comply with the court orders” remains unchallenged. (Emphasis added.)

Third, the defendant argues that “the $25,000 sanction appears to be a number that the court pulled out of the air.” “A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. . . . The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . .” (Citation omitted; internal quotation marks omitted.) Food Studio, Inc. v. Fabiola’s, 56 Conn. App. 858, 865, 747 A.2d 7 (2000).

The court was familiar with the history of the case and the extent of attorney activity. In its discussion of the sanction for discovery abuse, the court referenced attorney’s fees in the amount of $25,553.91 for dealing with the defendant’s incomplete financial records. We hold that, in the circumstances of this case, a sanction in the amount of $25,000 was reasonable. The court did not abuse its discretion in setting the amount of the sanction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found that the plaintiff and defendant were 49 percent owners of Madeleine, LLC.

       The defendant argues that the court erred in denying her oral motions for a mistrial and to strike Haralambus’ testimony. Because we conclude that the court did not impermissibly limit the cross-examination of Haralam-bus, we determine that the court did not err in denying these motions.

       On direct examination, however, Haralambus also placed blame for the lack of financial success on the plaintiff.

       The court apparently attached some importance to the confidentiality agreement. Because of the lack of materiality of the issue of identity, the court did not need to determine the weight, if any, to be accorded to any expectation of privacy created by the agreement.

       For example, Amaldo Marinelli, a friend of the parties who was involved in the California cosmetics company venture, testified that the defendant was aware of the wire transfers, that she “jumped in, gave [the plaintiff] the money, supposedly, and the money went out to California.”

        Perricone v. Rousseau, Superior Court, judicial district of Hartford, Docket No. CV-11-6027402-S, was brought against multiple defendants, including the plaintiff in this matter and Preferred Display. The allegations against the plaintiff include: that he had manipulated the defendant into investing in the California venture, had caused her to replace her attorney, and had convinced her to acquire a certain home in Glastonbury. She claimed that the plaintiff had deceptively had her execute an equity loan on the Glastonbury property in the amount of $800,000. The court in the present dissolution action determined that the plaintiff had exercised no undue influence or duress and had committed no fraud in the context of the failed California investments, that there was no merit to the defendant’s claims that the plaintiff had deprived her of legal counsel, that the plaintiff had been the driving force behind the purchase of the Glastonbury home, and that the defendant failed to meet her burden of proof to show that the plaintiff had not repaid the defendant in full for the home equity line of credit taken out on the Glastonbury property.

       In Mickey v. Mickey, supra, 292 Conn. 625-33, our Supreme Court discussed Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), in which a middle ground, not relevant to the present case, was carved out.


author: PER CURIAM.

text:
    MARTIN V.
      v. COMMISSIONER OF CORRECTION
    (AC 34425)
    Alvord, Keller and Bishop, Js.
    Argued January 6—
    officially released March 25, 2014

      Robert J. McKay, assigned counsel, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Marcia Pillsbury, assistant state’s attorney, for the appellee (respondent).

       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 victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

PER CURIAM.

In this appeal from the habeas court’s judgment denying his amended petition for a writ of habeas corpus, the petitioner, Martin V., claims that the court’s judgment was erroneous. We affirm the judgment of the habeas court.

In the underlying criminal prosecution, the petitioner was convicted, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The petitioner was sentenced to a total effective term of sixty years imprisonment, execution suspended after thirty-eight years, followed by twenty years of probation. On direct appeal to this court, the petitioner’s conviction was affirmed. See State v. Martin V., 102 Conn. App. 381, 926 A.2d 49, cert. denied, 284 Conn. 911, 931 A.2d 933 (2007).

In an amended petition dated April 8, 2010, the petitioner alleged that Attorney Norman Pattis, his trial counsel, was ineffective for failing to conduct an adequate pretrial investigation and for a variety of alleged missteps during trial. The petitioner alleged, as well, that Attorney John Williams, his pretrial counsel, was ineffective for failing to conduct an adequate pretrial investigation, and for failing to adequately explain and respond to the state’s pretrial plea bargain offer. Finally, the petitioner alleged that he was deprived of his right to testify at trial in violation of his due process rights.

At trial, the jury heard evidence from the victims that they are the petitioner’s children and that, during the relevant time periods, they lived in the same household as the petitioner and other extended family members. The victims testified that the petitioner sexually assaulted them over the course of several years.

In the underlying criminal proceeding, the petitioner was initially represented by Attorney Richard Mon-tanez. In April, 2004, after Montanez had been criminally charged in an unrelated case, Williams appeared for the petitioner. Williams continued to represent the petitioner throughout pretrial proceedings and up to the eve of trial when Pattis took over his representation.

The decisional law governing our review of a habeas petition premised on a claim of ineffective assistance of counsel is well established. In order to prevail on such a claim, a petitioner must prove that his counsel's performance was ineffective, that is, below an objective standard for reasonableness. Smith v. Commissioner of Correction, 148 Conn. App. 517, 85 A.3d 1199 (2014). The petitioner must also prove that he or she was prejudiced by counsel’s deficient performance, that is, a petitioner must prove that as a consequence of trial counsel’s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Johnson v. Commissioner of Correction, 218 Conn. 403, 424-25, 589 A.2d 1214 (1991). Finally, in regard to the law that guides our review, because a successful petitioner must prove both that counsel was ineffective and that the petitioner thereby suffered prejudice, a reviewing court need not opine on both prongs if the court is satisfied that the petitioner has not proven one of them. See, e.g., Washington v. Commissioner of Correction, 287 Conn. 792, 835-36, 950 A.2d 1220 (2008) (when petitioner fails to satisfy prejudice prong, there is no need to evaluate claim under performance prong). Such is the situation that this appeal presents.

As to Williams, the petitioner claims that he failed to conduct an adequate pretrial investigation and also that he failed to adequately handle pretrial plea negotiations. In support of his first claim, the petitioner alleges that Williams failed to interview family members who lived in the same household where the petitioner and the victims dwelt, failed to review records of the Department of Children and Families (department) regarding statements made by the victims to a forensic interviewer, failed to translate and utilize a letter from one of the victims to the petitioner that the petitioner believes contained exculpatory information, and failed to consult with an expert regarding the forensic interviews of the victims conducted before trial and the cross-examination of the victims at trial.

As to Williams’ representation regarding pretrial negotiations, the petitioner claims that Williams failed to adequately convey the state’s plea offer and to explain its ramifications to him. Although Williams denied many of these allegations at the habeas trial and provided explanations contrary to the thrust of the petitioner’s claims, we need not dwell on the petitioner’s ineffectiveness claims regarding Williams because they fail for want of prejudice. As to claims regarding pretrial offers by the state, the record discloses that, at one juncture before trial, the state had offered a plea that, if accepted by the petitioner, would have resulted in a lesser sentence than he received after trial. The habeas court found, however, with reason, that the petitioner had made it clear to Williams before trial that he would not plead to any conduct suggestive that he sexually assaulted the victims. In short, the court was satisfied from the credible evidence that the petitioner did not prove that he would have accepted the state’s pretrial plea offer because he was unwilling voluntarily to accept any period of incarceration. The record amply supports the court’s conclusions in this regard.

We conclude, similarly, as to the petitioner’s various claims regarding Williams’ representation of the petitioner before trial, that the court correctly determined that the petitioner failed to demonstrate that he was prejudiced by any of Williams’ alleged deficient performance. On the basis of its assessment of the credibility and interest of the family members who testified at the habeas trial, the court concluded that their testimony, if it had been solicited and offered in the underlying trial, would not have been helpful to the petitioner. The habeas court found, as well, that the petitioner failed to demonstrate in what manner any further investigation by Williams or a review of the victims’ department records would have been helpful to the petitioner in the underlying criminal proceedings. Finally, as to Williams, the court found that the letter written by one of the victims to the petitioner was not exculpatory as claimed by the petitioner.

Similarly, the habeas court found that the petitioner had failed to demonstrate that he was prejudiced by the manner in which Pattis represented him. As noted, the petitioner claimed that Pattis failed to conduct an adequate pretrial investigation and that he was ineffective, in myriad ways, at trial. Specifically, the petitioner claimed that Pattis failed to review the victims’ statements to the forensic interviewer and to utilize them in his defense, failed to adequately cross-examine the victims, failed to interview witnesses and to impeach their testimony, failed to translate and utilize a letter from one of the victims to the petitioner, failed to consult and present the testimony of a medical expert, failed to present an affirmative defense, and failed to adequately advise the petitioner regarding his right to testify at trial in order to ensure that he made a knowing and voluntary decision not to do so.

The habeas court rejected each of these claims regarding Pattis. As to Pattis’ alleged failure to interview and call to testify family members who lived in the same household as the petitioner and the victims, the habeas court concluded, from their habeas testimony, that their participation in the criminal trial would not have assisted the petitioner because they lacked credibility, they were not disinterested, and their testimony did not provide an alibi for the petitioner. In short, the court determined that calling these witnesses would not have been helpful to the petitioner’s defense. As to Pattis’ treatment of the victims’ department records, the victims’ cross-examinations and their pretrial interviews, the court concluded, with support from the record, that Pattis’ decisions regarding how to deal with the victims as witnesses were reasoned and informed. Nothing in the record suggests that the court’s conclusion in this regard was faulty. Additionally, as to Pattis, the habeas court found that the petitioner failed to introduce any credible or persuasive evidence that consultation by Pattis with any expert would have been useful in his treatment of the victims as witnesses and accusers. Finally, as to the petitioner’s right to testify, the court noted the testimony of Pattis that he fully discussed this with the petitioner and recommended that the petitioner not testify because he thought that the petitioner’s testimony at trial, subject to cross-examination, would likely be detrimental to the defense. The court determined that the petitioner was fully aware of his right to testify and that he voluntarily and knowingly waived that right following the court’s canvass. The record amply supports the habeas corut’s conclusions as to each of these claims.

The judgment is affirmed.

       In response to the petitioner’s due process claim, the respondent, the Commissioner of Correction, raised procedural default as to the allegations directed at the trial court. An allegation of trial court error is subject to procedural default unless cause and prejudice are both alleged and shown. Moody v. Commissioner of Correction, 127 Conn. App. 293, 299, 14 A.3d 408 (“[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule. ... A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.” [Internal quotation marks omitted.]), cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). In addressing the petitioner’s due process claim, the habeas court determined that the petitioner failed to allege and prove the required cause and prejudice. The habeas court also found that, after reviewing the trial court’s canvass of the petitioner at trial, the petitioner was well aware of his right to testify. Therefore, the habeas court determined that any allegation of trial court error, even if not procedurally defaulted, was without merit. Nonetheless, the habeas court’s determination as to this claim has not been challenged by the petitioner on appeal.