Cancel v. Commissioner of Correction, 189 Conn. App. 667

Background

Petitioner Santos Cancel was convicted at a consolidated jury trial of fourth-degree sexual assault and risk of injury to a child based on allegations from two minor victims (J and G); convictions affirmed on direct appeal.
The two cases were joined for trial with defense counsel (Atty. D’Amato) expressly stating no objection; significant physical and forensic evidence (holes cut in underwear; DNA/semen on G’s clothing) and J’s forensic interview were admitted.
Petitioner filed a habeas petition alleging multiple instances of ineffective assistance, including (1) failing to litigate joinder, (2) failing to object to a detective’s opinion that G was a victim, (3) failing to retain a forensic psychologist to challenge J’s interview as suggestive, and (4) failing to attend the presentence investigation interview.
The habeas court denied relief on all claims (finding either no deficient performance or no prejudice); it granted certification to appeal on several claims.
On appeal, the Connecticut Appellate Court affirmed, holding (inter alia) that the evidence in the two cases was cross-admissible, counsel’s strategic choices were reasonable given overwhelming evidence, and a presentence interview is not a Sixth Amendment critical stage entitling the defendant to counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to litigate joinder of the two informations	Cancel: counsel should have objected; separate trials would avoid cross‑prejudice and allow him to testify in G’s case without exposing J’s case	State: evidence was cross‑admissible; joinder proper and non‑prejudicial; counsel reasonably declined to object	Held: No prejudice — evidence cross‑admissible; no reasonable probability outcome would differ
Whether counsel was ineffective for not objecting to a detective’s opinion that G was a victim	Cancel: detective’s opinion invaded the jury’s ultimate finding and was prejudicial	State: substantial circumstantial and forensic evidence supported conviction independent of the opinion	Held: No prejudice — overwhelming independent evidence made objection unlikely to change result
Whether counsel was ineffective for not presenting a forensic‑psychology expert to challenge J’s forensic interview (suggestibility defense)	Cancel: J had developmental issues and the interview may have been suggestive; an expert could have undermined testimony	State: counsel reviewed videotape, found no suggestibility, and reasonably declined expert given strong physical/DNA evidence	Held: No deficient performance — strategic decision reasonable; habeas petitioner failed to overcome presumption of competent representation
Whether counsel’s absence from the presentence investigation interview constituted a Cronic complete denial of counsel (presumed prejudice)	Cancel: absence led to harmful comments in the report and denied Sixth Amendment right at a critical stage — prejudice should be presumed	State: presentence interviews are nonadversarial; probation officers act as an arm of the court, not the prosecution; not a critical stage	Held: No Sixth Amendment violation — presentence interview is not a critical stage in Connecticut; no Cronic presumption of prejudice

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
United States v. Cronic, 466 U.S. 648 (U.S. 1984) (circumstances where prejudice may be presumed due to complete denial of counsel)
Kirby v. Illinois, 406 U.S. 682 (U.S. 1972) (Sixth Amendment attaches at critical stages; proceeding must be adversarial)
State v. DeJesus, 288 Conn. 418 (Conn. 2008) (limited propensity exception for uncharged sexual misconduct evidence)
State v. Payne, 303 Conn. 538 (Conn. 2012) (state bears burden to prove joinder will not substantially prejudice defendant)
State v. Ellis, 270 Conn. 337 (Conn. 2004) (Boscarino factors and joinder jurisprudence)
State v. Crenshaw, 313 Conn. 69 (Conn. 2014) (cross‑admissibility of evidence supports joinder)
State v. Cancel, 149 Conn. App. 86 (Conn. App. 2014) (direct appeal affirming convictions; summarized facts used by habeas court)