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Santaniello v. Commissioner of Correction
ANTHONY SANTANIELLO, JR. v. COMMISSIONER
OF CORRECTION
(AC 46199)
Bright, C. J., and Moll and Flynn, Js.
Syllabus
The petitioner, who had been convicted of several crimes, appealed, on the
granting of certification, from the habeas court’s judgment denying his
habeas corpus petition. The petitioner claimed, inter alia, that the habeas
court improperly rejected his claim that his prior habeas counsel, B, had
rendered ineffective assistance, inter alia, by failing to allege that his criminal
trial counsel, R, and his counsel on direct appeal, S, were ineffective in
failing to raise a claim that the admission of statements by a jailhouse
informant, M, at the petitioner’s criminal trial violated the petitioner’s sixth
amendment right to confrontation under Crawford v. Washington (541 U.S.
36), which had been decided eleven days before his sentencing.
The habeas court properly concluded that B did not render ineffective
assistance by not raising the Crawford claim as to R because R did not
perform deficiently by failing to move for a new trial in the eleven day
period before the petitioner’s sentencing, as no court during that time frame
had further clarified how Crawford applied generally or specifically as to
the statements of government informants such as M, and R’s failure to
advance a novel constitutional argument did not constitute ineffective assis-
tance.
This court concluded that B did not render ineffective assistance by not
raising the Crawford claim as to S because, although S should have known
that she could have raised the unpreserved Crawford claim on direct appeal
in light of State v. Greene (274 Conn. 134), which had adjudicated an unpre-
served Crawford claim several months before S filed her appellate brief,
the habeas court properly concluded that any improper admission of M’s
statements constituted harmless error, as M’s statements were unnecessary
and cumulative of other independent evidence of the petitioner’s guilt, and,
because there was not a reasonable likelihood that the Crawford claim
would have succeeded on appeal, the petitioner was not prejudiced by S’s
decision to forgo that claim.
B did not render ineffective assistance by failing to claim that R had per-
formed deficiently in making a tactical decision at trial not to assert that
the state violated the petitioner’s right to counsel under Massiah v. United
States (377 U.S. 201) by using M to elicit incriminating statements about
the petitioner, as it was M who had initiated contact with the state, and the
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Santaniello v. Commissioner of Correction
state never asked M to collect information about the petitioner or promised
or offered M any benefit for doing so.
Argued September 5, 2024—officially released February 25, 2025
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, M. Murphy, J.; thereafter,
the petition was withdrawn in part; judgment denying
the petition, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
Desmond M. Ryan, assistant public defender, for the
appellant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, was Jo Anne Sulik, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
BRIGHT, C. J. Following the granting of his petition
for certification to appeal, the petitioner, Anthony San-
taniello, Jr., 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 improp-
erly rejected his claim that his prior habeas counsel
performed deficiently by failing to allege that (1) both
his trial counsel and appellate counsel provided ineffec-
tive assistance in failing to raise the claim that the
admission of a jailhouse informant’s statements at trial
violated his right to confrontation under the United
States constitution pursuant to Crawford v. Washing-
ton, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), and (2) his trial counsel rendered ineffective
assistance when he waived the petitioner’s claim that
the state violated his right to counsel pursuant to Mas-
siah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199,
12 L. Ed. 2d 246 (1964), by using the same jailhouse
informant to elicit incriminating statements from him.
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Santaniello v. Commissioner of Correction
For the reasons that follow, we affirm the judgment of
the habeas court.
The following facts underlying the petitioner’s crimi-
nal conviction, which the jury reasonably could have
found on the basis of the evidence admitted at trial,
were set forth previously by this court in our decision
addressing the petitioner’s direct criminal appeal. See
State v. Santaniello, 96 Conn. App. 646, 902 A.2d 1,
cert. denied, 280 Conn. 920, 908 A.2d 545 (2006). ‘‘The
[petitioner] and the victim were acquaintances. The vic-
tim lived in a single-family dwelling with her daughter
and a female friend, S. On January 12, 2002, the [peti-
tioner] and the victim spent part of the day together,
and the victim told the [petitioner] that she planned to
go to a local pub in the evening. The victim went to
the pub at approximately 9 p.m., where she met several
friends including the [petitioner] and S. They remained
at the pub until it closed at approximately 2 a.m. There-
after, the victim returned to her apartment alone, where
she left the door unlocked in case S returned later, and
she went to bed. She spoke with the [petitioner], via
the telephone, during the night.
‘‘Some time thereafter, the [petitioner] appeared in
the victim’s bedroom. He sat on her bed and proceeded
to make advances toward her. The victim repeatedly
told the [petitioner] to stop, but he became forceful
and overcame the victim, removing her sweatpants,
tearing her panties and sexually assaulting her. The
victim was left bruised and had a rope like burn on her
hip where her panties had been torn from her.
‘‘When S returned home later that afternoon, she
knew that something was wrong with the victim. When
S questioned the victim, the victim became emotional
and ‘lost it.’ She then told S what had happened. S urged
the victim to telephone the police, but the victim did
not want to report the incident because she was afraid
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Santaniello v. Commissioner of Correction
of the [petitioner]. S, however, continued to urge the
victim to report the incident, and four days later, the
victim filed a complaint with the Enfield police. A foren-
sic examination of the victim’s panties revealed a stain
that contained the [petitioner’s] DNA. The [petitioner]
was arrested on February 22, 2002. In an amended long
form information, the [petitioner] was charged with two
counts of sexual assault in the first degree, burglary in
the first degree and kidnapping in the first degree (sex-
ual assault case).
‘‘Following the [petitioner’s] arrest, he was incarcer-
ated at the Cheshire Correctional [Institution], where
he shared a cell with Thomas Marra from May 13 until
July 30, 2002. In August, 2002, Marra contacted George
Nobile, an inspector with the division of criminal jus-
tice, informing Nobile that he had a cell mate who
wanted to have a witness killed. Nobile and a supervi-
sor, Gregory Dillon, met with Marra on September 4,
2002, and Marra informed them that the [petitioner]
wanted to have the victim killed so that she could not
testify against him. Marra provided a letter written by
the [petitioner] and explained the code words used in
the letter. Subsequently, Marra also provided Nobile
and Dillon with further correspondence from and to
the [petitioner] concerning the [petitioner’s] desire to
have the victim killed.
‘‘On October 9, 2002, Marra telephoned the [peti-
tioner] and told him he could put the [petitioner] in
contact with an assassin. Nobile then assumed the
undercover role of the assassin and contacted the [peti-
tioner] on October 14 and 18, 2002. Nobile set up a
meeting with the [petitioner] for the morning of October
21, 2002, but the [petitioner] did not appear for that
meeting.
‘‘The [petitioner] was arrested on October 25, 2002,
and was held at the Bridgeport Correctional Center,
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Santaniello v. Commissioner of Correction
where he shared a cell with Andre Holeman. The [peti-
tioner] told Holeman that he was facing sexual assault
charges and that he had wanted the victim killed so
that she could not testify against him. He also told
Holeman about Marra and his arranging a meeting with
an assassin. He further explained to Holeman that he
was supposed to pay the assassin $7500 to kill the victim
but that he did not have the funds and, therefore, was
considering killing the victim himself. The [petitioner]
also asked Holeman to telephone the [petitioner’s]
attorney to report that the [petitioner] had been set up
by Marra. In an amended long form information, the
[petitioner] was charged with attempt to commit mur-
der, inciting injury to another person and intimidating a
witness (attempted murder case).’’ (Footnote omitted.)
Id., 649–51.
At trial, the petitioner was represented by then Attor-
ney, now Superior Court Judge, Kevin A. Randolph. On
January 20, 2004, ‘‘[a]fter a consolidated trial, the jury
found the [petitioner] guilty of sexual assault in the
first degree, kidnapping in the first degree, attempt to
commit murder, inciting injury to another person and
intimidating a witness.’’ Id., 651. On March 19, 2004, the
court, Lavine, J., sentenced the petitioner to a total
effective term of forty-two years of incarceration. See
id., 648.
The petitioner appealed, claiming that the trial court
‘‘improperly (1) abused its discretion in joining and
refusing to sever two separate informations, (2) denied
the [petitioner’s] motion to suppress, (3) failed to con-
duct an in camera review of documents and (4) refused
to consider the [petitioner’s] postverdict letter requesting
a new trial.’’ Id. Attorney Deborah G. Stevenson, a spe-
cial public defender, represented the petitioner in his
direct appeal. This court affirmed the judgments of con-
viction, concluding that ‘‘(1) there was no substantial
injustice in the joinder of the informations in a single
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Santaniello v. Commissioner of Correction
trial, (2) the court properly denied the motion to sup-
press the [petitioner’s] statements because there was
adequate evidence from which it could have found that
the [petitioner] implicitly waived his right to remain
silent, (3) the court was not obligated to review docu-
ments and prison records in camera because defense
counsel agreed on the record that it was unnecessary
and (4) defense counsel unequivocally stated that he
was withdrawing his petition for a new trial and would
be refiling the petition separately as a civil matter.’’ Id.,
648–49. Our Supreme Court subsequently denied the
petitioner’s petition for certification to appeal. See State
v. Santaniello, 280 Conn. 920, 908 A.2d 545 (2006).
While his direct appeal was pending, the petitioner
pursued a petition for a new trial, initially represented
by Randolph and then by Attorney William H. Paetzold.1
At the trial on the petition, the petitioner presented
testimony from Felix Cotto, another inmate, as newly
discovered evidence supporting a claim that Holeman
fabricated his testimony at trial. The court, Hon. Joseph
Q. Koletsky, judge trial referee, denied the petition,
concluding that ‘‘[t]here is considerable evidence in the
record so that even if the court were to accept Cotto’s
testimony about [Holeman’s] unsworn recantation,
there is no indication that the result of the trial would
have been different more likely than not.’’
1
On March 8, 2004, Randolph filed a petition for a new trial in the underly-
ing criminal case on the basis of a letter sent by Marra to Judge Lavine in
which Marra stated that he had manipulated and convinced the petitioner
to have the victim killed. On March 19, 2004, prior to the sentencing hearing,
the court addressed the petition. Randolph argued before the court that the
letter constituted newly discovered evidence. Randolph, however, agreed
with the court that the petition for a new trial should have been filed instead
as a civil action pursuant to Practice Book § 42-55 and General Statutes
§ 52-270 and, therefore, withdrew the petition. Thereafter, the new petition
was filed on May 6, 2004., In his direct appeal, the petitioner claimed that
the trial court improperly refused to consider the improperly filed petition
for a new trial, and this court concluded that his claim was baseless. See
State v. Santaniello, supra, 96 Conn. App. 672–73.
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Santaniello v. Commissioner of Correction
Following his unsuccessful direct appeal and petition
for a new trial, the petitioner commenced his first
habeas action, represented by Attorney Walter Bansley
IV. In the operative amended petition, the petitioner
alleged: (1) his trial counsel (Randolph) performed defi-
ciently by failing (a) to explain the evidence and recom-
mend a plea offer, (b) to explain the right to testify, and
(c) to call two witnesses at trial; and (2) his appellate
counsel (Stevenson) performed deficiently by failing
to claim that there was insufficient evidence for the
attempted murder conviction. After a trial on the merits,
the first habeas court, Cobb, J., denied the petition,
concluding that the petitioner had failed to meet his
burden of establishing ineffective assistance of counsel
for either attorney. The petitioner appealed to this
court, challenging the judgment only as to his ineffec-
tive assistance of appellate counsel claim. See Santani-
ello v. Commissioner of Correction, 152 Conn. App.
583, 584, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102
A.3d 1115 (2014). This court affirmed the first habeas
court’s judgment; see id.; and our Supreme Court denied
the petitioner’s petition for certification to appeal. See
Santaniello v. Commissioner of Correction, 314 Conn.
937, 102 A.3d 1115 (2014).
The petitioner then commenced a second habeas
action, which underlies the present appeal. In the opera-
tive fourth amended petition filed on October 26, 2020,
the petitioner alleged, inter alia, that Bansley performed
deficiently in the first habeas action by failing to claim
that (1) both Randolph and Stevenson provided ineffec-
tive assistance of counsel by failing to raise the petition-
er’s Crawford claim, and (2) Randolph provided ineffec-
tive assistance of counsel when he waived the petitioner’s
Massiah claim.
The second habeas court, M. Murphy, J., conducted
a trial over two days, January 25 and April 18, 2022.
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Santaniello v. Commissioner of Correction
During the second habeas trial, the court heard testi-
mony from Randolph, Stevenson, Bansley, Attorney
Michael A. Gailor, who was the prosecutor in the origi-
nal criminal trial, former Inspectors Nobile and Dillon,
and three expert witnesses, Attorneys W. Theodore
Koch III, Lisa J. Steele, and Vishal K. Garg. The petition-
er’s arguments at the habeas trial focused on the defi-
ciency of his prior habeas counsel’s performance in
failing to raise, prove, and argue that (1) pursuant to
Crawford, the petitioner’s right to confrontation was
violated when Marra’s testimonial statements were pre-
sented to the jury despite the fact that Marra was never
called as a witness, and (2) the state violated the peti-
tioner’s sixth amendment right to counsel when it used
Marra to elicit incriminating statements from the peti-
tioner.2 The court denied the petition, finding that the
expert testimony presented by the petitioner was nei-
ther helpful nor persuasive, and concluding that the
petitioner had failed to show ineffective assistance of
counsel by Randolph, Stevenson, or Bansley. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
We begin by setting forth guiding principles of law as
well as the applicable standard of review for ineffective
assistance of counsel claims, which are well settled.
‘‘In Lozada [v. Warden, 223 Conn. 834, 842–43, 613 A.2d
818 (1992)], our Supreme Court established that habeas
corpus is an appropriate remedy for the ineffective
assistance of appointed habeas counsel, authorizing
what is commonly known as a habeas on a habeas,
namely, a second petition for a writ of habeas corpus
. . . challenging the performance of counsel in litigat-
ing an initial petition for a writ of habeas corpus . . .
2
The petitioner also claimed that his prior habeas counsel was deficient
in failing to claim that the petitioner’s sexual assault and attempted murder
cases should not have been joined for trial. The habeas court rejected
this claim, and the petitioner does not challenge that conclusion in the
present appeal.
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Santaniello v. Commissioner of Correction
[that] had claimed ineffective assistance of counsel at
the petitioner’s underlying criminal trial or on direct
appeal. . . . Nevertheless, the court in Lozada also
emphasized that a petitioner asserting a habeas on a
habeas faces the herculean task . . . of proving in
accordance with Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both
(1) that his appointed habeas counsel was ineffective,
and (2) that his trial counsel was ineffective. . . . Any
new habeas trial would go to the heart of the underlying
conviction to no lesser extent than if it were a challenge
predicated on ineffective assistance of trial or appellate
counsel. The second habeas petition is inextricably
interwoven with the merits of the original judgment by
challenging the very fabric of the conviction that led to
the confinement.’’ (Internal quotation marks omitted.)
Lebron v. Commission of Correction, 204 Conn. App.
44, 50, 250 A.3d 44, cert. denied, 336 Conn. 948, 250
A.3d 695 (2021).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. Strickland requires that a peti-
tioner satisfy both a performance prong and a prejudice
prong. To satisfy the performance prong, a claimant
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment. . . . 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. . . . Because both prongs
. . . must be established for a habeas petitioner to pre-
vail, a court may [deny] a petitioner’s claim if he fails to
meet either prong.’’ (Internal quotation marks omitted.)
Crocker v. Commissioner of Correction, 220 Conn. App.
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Santaniello v. Commissioner of Correction
567, 583, 300 A.3d 607, cert. denied, 348 Conn. 911, 303
A.3d 10 (2023).
‘‘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. . . . [T]his court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review.’’
(Internal quotation marks omitted.) Lebron v. Commis-
sioner of Correction, supra, 204 Conn. App. 51. With
these principles in mind, we address each of the peti-
tioner’s claims in turn.
I
The petitioner first claims that Bansley provided inef-
fective assistance of counsel by failing to raise a claim
regarding both Randolph’s and Stevenson’s failure to
pursue a claim, either at his criminal trial or in his
direct appeal, that the admission of Marra’s statements
through other witnesses violated his right to confronta-
tion under the United States constitution pursuant to
Crawford v. Washington, supra, 541 U.S. 36. Specifi-
cally, the petitioner claims that Randolph was ineffec-
tive in failing to seek a new trial on the basis of Craw-
ford, that Stevenson was ineffective in failing to raise
a Crawford claim in his direct appeal, and that the
petitioner was prejudiced by these deficiencies.3 We are
not persuaded.
3
On appeal, the petitioner also claims that the habeas court erred by
applying an incorrect legal standard when evaluating the prejudice prong
of the petitioner’s ineffective assistance claims relating to the Crawford
claim. When discussing Randolph’s performance, the court concluded that
‘‘[the petitioner] has failed to establish that he was prejudiced thereby
because he has not demonstrated that the trial court would have granted
a new trial on this basis.’’ (Emphasis added.) Similarly, the court also con-
cluded that ‘‘[the petitioner] has failed to demonstrate that he would have
prevailed on appeal had Stevenson raised a Crawford claim . . . .’’ (Empha-
sis added.) The petitioner asserts that, by assessing whether the petitioner
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Santaniello v. Commissioner of Correction
The following additional facts are relevant to our
analysis. The sexual assault case and the attempted
murder case were consolidated for trial. At trial, the
victim testified about the events that occurred the night
she was assaulted by the petitioner. To corroborate
the victim’s testimony that the petitioner had sexually
assaulted her, the state introduced exhibit 3, a photo
of the injury she sustained during the assault; exhibit
8, the shirt she was wearing; exhibit 6, her sweatpants
with a broken drawstring, which the victim explained
broke during the assault; and exhibit 7, her underwear.
The state also presented the testimony of the victim’s
roommate, who testified about the victim’s recounting
of the assault to her, her observations of both the injur-
ies on the victim’s body and the victim’s emotional state,
and her assistance in reporting the crime by calling a
crisis hotline to obtain advice for the victim. The vic-
tim’s testimony also was corroborated by her room-
would have succeeded as opposed to whether there was a reasonable proba-
bility that the petitioner would have succeeded, the habeas court improperly
increased the burden of proof borne by the petitioner. See Delgado v. Com-
missioner of Correction, 224 Conn. App. 283, 291, 311 A.3d 740 (‘‘[t]o 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’’ (internal quotation marks omitted)),
cert. denied, 349 Conn. 902, 312 A.3d 585 (2024). This claim warrants little
discussion.
The habeas court set forth the correct legal standard for the prejudice
prong in its memorandum of decision when discussing the petitioner’s claim
as to Stevenson: ‘‘[W]hen a petitioner is claiming ineffective assistance of
appellate counsel, he must establish that there is a reasonable probability
that, but for appellate counsel’s error, [he] would have prevailed in his direct
appeal.’’ (Internal quotation marks omitted.) We do not read the court’s
omission of the phrase ‘‘reasonable probability’’ in stating its conclusions
regarding Randolph as demonstrating that the court applied an incorrect
legal standard. In any event, because we hold that the court properly con-
cluded that the petitioner failed to prove that Randolph performed deficiently
as to the Crawford claim, any misstatement by the court as to the prejudice
prong of Strickland was harmless. See Crocker v. Commissioner of Correc-
tion, supra, 220 Conn. App. 583 (‘‘[b]ecause both prongs . . . must be estab-
lished for a habeas petitioner to prevail, a court may [deny] a petitioner’s
claim if he fails to meet either prong’’ (internal quotation marks omitted)).
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Santaniello v. Commissioner of Correction
mate’s spouse, who testified about his observations of
the victim’s emotional state, the conversation between
the victim and her roommate, in which the victim indi-
cated that she had been assaulted, and the roommate’s
call to the crisis hotline. The state also offered expert
testimony describing the forensic examination of the
victim’s underwear, which contained the petitioner’s
DNA.
Major Jonathan Hall, an employee at Cheshire Cor-
rectional Institution, testified that, on February 27, 2002,
the petitioner had been transferred there and that the
petitioner and Marra shared a prison cell from May 13
to July 30, 2002, on which date the petitioner was
released on bond.
Dillon, an inspector with the Office of the Chief
State’s Attorney, testified about his participation in the
arrest of the petitioner on October 25, 2002, for the
attempted murder charge and the statements the peti-
tioner voluntarily made to law enforcement at that time.
Dillon testified that the petitioner had told Dillon that
he was not familiar with the victim’s address as of
October, 2002, nor the type of car she operated at that
time. Holeman, who briefly shared a prison cell with
the petitioner at Bridgeport Correctional Center, testi-
fied that the petitioner described the sexual assault
charge as a date that went too far. Holeman testified
that the petitioner told him that ‘‘Marra was going to
handle some things for him,’’ that ‘‘Marra was going to
kill the person, put the person in the junkyard in a car
and get rid of the body,’’ and that the petitioner wanted
the victim killed so she could not testify against him.
On cross-examination, Holeman testified that he saw a
television news report on October 25, 2002, about the
petitioner’s case. Both Randolph and the state attempted
to distinguish between information Holeman learned
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Santaniello v. Commissioner of Correction
through the news report and from the petitioner. Hole-
man testified that the news program gave only the peti-
tioner’s name and showed his face, and that the details
shared by the petitioner about which Holeman testified
were not included in the program.
The most relevant witness to the petitioner’s claims
in the present case, called by the state at trial, was
Nobile. He testified that he had received a letter from
Marra in August, 2002, in which Marra wrote that he
had a cellmate who wanted to have a witness killed. A
copy of that letter was admitted into evidence at trial
as exhibit 14. Exhibit 14 is addressed to Nobile and
signed by Marra. In the letter, Marra states, ‘‘I’ve been
trying to get in touch with you to see if you might be
interested in the following information. I’m in contact
with this person in the Hartford/Tolland area that wants
to have a witness in a major criminal case disappear/
murder[ed] as soon as possible.’’ Marra further claimed
that he had the witness’ identifying information and
could put Nobile into direct contact with the petitioner.
He made clear, however, that he was ‘‘looking for some-
thing in return for this.’’ Nobile testified that, after
receiving the letter, he and Dillon met with Marra on
September 4, 2002. At that meeting, Marra gave them
the petitioner’s name and an additional correspondence
he had with the petitioner, which was admitted into
evidence as exhibit 12. Exhibit 12, a letter dated May
8, 2002, and postmarked August 8, 2002, is addressed to
‘‘Tommy’’ and signed, ‘‘Joe.’’ At the petitioner’s criminal
trial, the state did not rely on the body of the letter,
which primarily updated Marra on the petitioner’s life
since he ‘‘came home.’’ Nobile testified that he found
two things about the letter significant. At the bottom
of exhibit 12 is a reference to ‘‘Donna’s #’’ opposite the
signature, ‘‘Joe.’’ Nobile testified that Marra had told
him that Donna referred to the victim, and that ‘‘Joe’’
was short for Joe Black and referred to the petitioner.
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Santaniello v. Commissioner of Correction
Nobile further testified that the letter’s envelope was
significant because the return address, under the name
‘‘J. Black,’’ matched the victim’s address. Nobile testi-
fied that he did not take the information provided by
Marra at face value; both Nobile and Dillon conducted
further investigation and confirmed the name of the
victim and her address.4 Nobile testified that Dillon had
independently researched the significance of the alias,
Joe Black, and concluded that it was a reference to
a 2001 movie called ‘‘Meet Joe Black,’’ in which the
character Joe Black represented death.
Nobile testified that he had another meeting with
Marra on October 8, 2002. At this meeting, Marra gave
him another letter he had received from the petitioner,
which was admitted into evidence as exhibit 13. Exhibit
13 is a letter dated September 9, 2002, written to ‘‘Boss-
man’’ and signed, ‘‘J. Black.’’ The letter contains the
phrase, ‘‘[o]ne ninety Rose Soap Dish is with Donna
like also white four-door Blazer.’’ Nobile testified that
‘‘190RSD’’ is the license plate number of the victim’s
vehicle and that the description, ‘‘white four-door
Blazer’’ matched the victim’s vehicle. Nobile testified
that, at the October 8, 2002 meeting, he and Dillon had
asked Marra to make a phone call to the petitioner. The
call eventually was arranged for October 9, 2002, and
the recording was offered into evidence at trial, with
copies of the transcript of the recording given to the
jury. During the call, Marra mentioned ‘‘our girlfriend’’
and referred to the letters he and the petitioner had
exchanged, to which the petitioner responded affirma-
tively. During the conversation, Marra and the petitioner
discussed the code used in the letters as follows:
4
Dillon similarly testified that, through his own investigation, he had the
opportunity to determine the victim’s address, car type, and license plate
number, and that the address on the envelope of the letter matched the
victim’s address.
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‘‘[Marra]: Uhhh, now listen, let me ask you one other
question, right.
‘‘[The Petitioner]: Yep.
‘‘[Marra]: The, the letter you sent me about the white
truck, I’m not the brightest guy in the world . . . .
‘‘[The Petitioner]: Yup.
‘‘[Marra]: You, you put soap slash. Is that what I think
it is?
‘‘[The Petitioner]: What’d you . . . .
‘‘[Marra]: You, you put soap slash, you put rose soap,
and with the s you put a slash. You put dish you put
a slash.
‘‘[The Petitioner]: Yeah first letters of every, first let-
ters of the uhh, of the thing, the . . . tag. Ya know
what I mean?
‘‘[Marra]: The . . .
‘‘[The Petitioner]: It’s like when it’s S or [whatever]
it is, where all of those slashes are.
‘‘[Marra]: Right.
‘‘[The Petitioner]: Those are the, those are the letters.
‘‘Marra: The . . . . Oh, oh, oh yeah. [They are] the
first letters of our our deal. [Okay]. I forgot. . . .
‘‘[The Petitioner]: Yeah.’’
Nobile testified that, in his role as the undercover
assassin, he had called the petitioner on October 14,
2002, and left him a voice message. In the voicemail,
Nobile referred to himself as ‘‘Tommy’s friend.’’ When
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Santaniello v. Commissioner of Correction
the petitioner returned Nobile’s call later that day, Nob-
ile and the petitioner engaged in the following conversa-
tion,5 establishing a time frame, the price for having
the victim killed, which Marra previously had told the
petitioner, and when to next talk on the phone:
‘‘[Nobile]: What’s, uhhh, what’s her name ‘Donna’?
‘‘[The Petitioner]: Yup.
‘‘[Nobile]: Uhh, wh-what’s the time frame on this?
Wh-wh-when are things gonna start?
‘‘[The Petitioner]: Uhh, when, whenever really. Umm,
it, it doesn’t really matter.
‘‘[Nobile]: Yeah, because . . . he made it kinda
sound like it was a rush.
‘‘[The Petitioner]: Well, like within a month or so. Ya
know, I don’t, I mean I don’t know what your time
frame is, ya know? . . .
‘‘[Nobile]: What’d he tell ya.
‘‘[The Petitioner]: Uhhh, like 75.
‘‘[Nobile]: Yeah, cause he, he kinda low balls it. But
that’s all right. I mean he, he says that you, you know
her pretty well.
‘‘[The Petitioner]: Yep.
***
‘‘[Nobile]: Now he also said too, [something] about
a different car or somethin[g]. Then he started tellin[g]
me somethin[g] about . . . .
‘‘[The Petitioner]: Uhh, yeah, there’s, there’s still the
same things there from before in the letter I wrote him,
just them two.
5
Nobile recorded both the voicemail and the phone conversation from
October 14, 2002, a transcript of which was admitted into evidence at trial
as exhibit 17.
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Santaniello v. Commissioner of Correction
‘‘[Nobile]: . . . Some numbers and some letters or
somethin[g] like that. Right?
‘‘[The Petitioner]: Yuhh, yeah.
‘‘[Nobile]: Alright, uhh . . . what I’ll do is I’ll give
you uhh, I’ll give you a call tomorrow about this time.
‘‘[The Petitioner]: OK.’’
Nobile and the petitioner spoke once more on Octo-
ber 18, 2002. A transcript of that conversation was
admitted into evidence as exhibit 18. During the Octo-
ber 18, 2002 conversation, Nobile and the petitioner
agreed to meet in the Enfield area. The following
exchange occurred between Nobile and the petitioner:
‘‘[Nobile]: Alright I’ll give you a call when I get up
there.
‘‘[The Petitioner]: OK.
‘‘[Nobile]: And then we can meet from there. Now
the only thing is, uhhh, our friend, our friend told ya
that there’s a, uhhh, a little thing up front for good
faith, right?
‘‘[The Petitioner]: Uhhh, I guess we’d, I’d have to talk
to more, more or less by Monday, ya know, from what
me and [Marra] talked about.
‘‘[Nobile]: OK. Yeah [because] like.
‘‘[The Petitioner]: [You] know, so I’ll, I mean, I guess
I could talk to you, I should let you know what this
all means.
‘‘[Nobile]: OK. Alright, we’ll do that, but then figure
what I’ll do is, uhh, Monday, uhhh, between 10:30 and
11 I’ll get up there and I’ll give you a call.
‘‘[The Petitioner]: OK.’’
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Nobile testified at trial that the petitioner did not
appear at the agreed upon time. Nobile further testified
that, sometime thereafter, he and Dillon participated in
the execution of a search warrant at the petitioner’s
house where they located additional letters from Marra
to the petitioner in the petitioner’s bedroom, including
a letter dated August 13, 2002, which was admitted into
evidence as exhibit 19, addressed to ‘‘Anthony’’ and
signed, ‘‘Tom Marra.’’ Part of the August 13 letter reads:
‘‘That address is Donna, so I’ll start to check it out it
would be a big help if you had Donna plate number,
then we can get all the information Donna needs for
parts.’’ Nobile testified that they also seized an address
book from the petitioner’s bedroom, which was admit-
ted into evidence as exhibit 20 and contained Marra’s
inmate number and a phone number at which someone
connected with Marra could be reached; a scrap of
paper, which was admitted into evidence as exhibit 21
and described by Nobile in his testimony as follows:
‘‘It’s Tom Marra, the number after it is 73281, and there
is a telephone number and a name that is circled. It’s
203-372-8993, the name is Connie. Directly below that
is the name Joseph Black, name, address, [date of birth],
and it also says DOL, meaning driver’s license number’’;
a book that referenced the victim’s phone number; and
a photo of the victim.
After the conclusion of the state’s case, the defense
elected not to call any witnesses and moved for a judg-
ment of acquittal, which the court denied on January
12, 2004. Neither the state nor the defense called Marra
as a witness.
At the close of trial, the court gave the jury limiting
instructions as to what evidence could be considered
for what purpose in each case. Specifically, the court
instructed the jury that the following evidence, which
had been admitted as exhibits 15 through 18, was admis-
sible for all purposes in the attempted murder case: (1)
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Santaniello v. Commissioner of Correction
the telephone conversations between Nobile and the
petitioner, as well as those between Marra and the peti-
tioner, in both transcript and recorded form; (2) a notice
of rights form, which had been given to the petitioner
and admitted into evidence as exhibit 11; and testimony
by Dillon as to the petitioner’s statements to law
enforcement following his arrest on October 25, 2002;
(3) the letters between Marra and the petitioner, exhib-
its 12, 13, 14, 19 and 22; and (4) statements the petitioner
made to Marra or Nobile after September 4, 2002, the
date when Marra became an agent for the state. With
respect to the sexual assault case, the court instructed
the jury that exhibit 14 was admitted for all purposes,
and that exhibits 12 and 13 were admitted solely as
consciousness of guilt evidence.
On January 20, 2004, the jury returned its verdicts,
finding the petitioner guilty of all charges. On March 8,
2004, the United States Supreme Court issued its deci-
sion in Crawford v. Washington, supra, 541 U.S. 36, in
which the court held that out-of-court statements that
are testimonial in nature are barred under the confron-
tation clause unless the witness is unavailable to testify
at trial and the defendant had a prior opportunity to
cross-examine the witness. See id., 68. Randolph did
not file a motion for a new trial based on Crawford
prior to the petitioner’s March 19, 2004 sentencing and
did not raise Crawford in the petition for a new trial
that he filed on May 6, 2004.
It was unclear whether Randolph was aware of Craw-
ford while he represented the petitioner. At the second
habeas trial, he testified that, ‘‘[t]ypically, I would not
be reading federal case law at that time during the
course of the trial.’’ Further, Randolph testified that,
even if it were assumed that he had been aware of
Crawford and that the new rule it established applied
to the petitioner’s case, a change in the law provided no
basis for a new trial because it was not newly discovered
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Santaniello v. Commissioner of Correction
evidence; rather, he maintained, it was an issue more
appropriate for appellate counsel to raise on appeal.
Stevenson filed the petitioner’s appellate brief with
this court on October 5, 2005. As previously noted in
this opinion, Stevenson raised several claims in the
petitioner’s direct appeal, although she did not raise a
Crawford claim.
At the underlying habeas trial, Stevenson testified as
to her recollection of her handling of the petitioner’s
appeal during the following exchange with the petition-
er’s counsel:
‘‘[The Petitioner’s Counsel]: Okay. Do you think that
the record would have been sufficient for [the Appellate
Court to review] a Crawford claim pursuant to [State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015)]?
‘‘[Stevenson]: . . . I think so, yes. I always try to
raise Golding, you know, to protect the client’s right
in case the trial counsel does not raise it . . . .
‘‘[The Petitioner’s Counsel]: Okay. And, and under
your understanding of the, the Golding prongs, none
of them wouldn’t, would not have been met by the
Crawford claim here. Is that right?
‘‘[Stevenson]: I’m not sure I understand the question.
‘‘[The Petitioner’s Counsel]: You, do you know—do
you recall what the prongs are for Golding?
‘‘[Stevenson]: Again, my memory fails me, but, but
there are four of them. . . . [Y]ou have to have the
facts, et cetera—the first two are a little fuzzy, but
definitely the third is, is the obstacle. For me, most of
the time it’s, it has to raise a constitutional issue, but
I’m fuzzy on the other three. I apologize.
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‘‘[The Petitioner’s Counsel]: That’s okay. Just to the
extent that you recall it not meeting Golding wasn’t a
reason you rejected it. Would that be fair to say?
‘‘[Stevenson]: No. I don’t believe so, no. . . .
‘‘[The Petitioner’s Counsel]: Given the constraints
that were placed on you with respect to the motion
to review the materials in camera, why wouldn’t you
consider raising the Crawford claim in lieu of that one?
‘‘[Stevenson]: To be honest, I do not know. Okay?
It—if I didn’t, it—was it error on my part? It may have
been. I, I don’t honestly recall expressly ruling it in or
out. I think I was just more focused on the other issues
that, that were really troublesome.
‘‘[The Petitioner’s Counsel]: Okay. So, it wasn’t neces-
sarily a conclusion that Crawford was a weaker claim
than the others that you decided to brief?
‘‘[Stevenson]: I don’t think I put it that way in my
mind as I was writing it. Again, I was more focused on
the other issues then.’’
The habeas court found that neither Randolph nor
Stevenson had performed deficiently by failing to raise
a Crawford claim. As to Randolph’s performance, the
habeas court found ‘‘that it would be unreasonable to
conclude that . . . Randolph rendered deficient per-
formance by not seeking a new trial in the eleven day
window between the release of Crawford and [the peti-
tioner’s] sentencing.’’ The court noted that when Craw-
ford was decided, it was unknown whether the new
rule applied retrospectively or prospectively. Regarding
Stevenson, the habeas court found that ‘‘Stevenson’s
review of the record led her to conclude that a Crawford
claim was not properly preserved for appeal. . . . It
was reasonable under the circumstances of this case
for Stevenson to not seek Golding review of a Crawford
claim,’’ given that, in 2022, ‘‘[t]he question of whether
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Santaniello v. Commissioner of Correction
and to what extent unpreserved claims alleging viola-
tions of Crawford v. Washington, [supra, 541 U.S. 36],
are subject to Golding review [was] currently pending
before [our Supreme Court]. See State v. Robles, Docket
No. SC 20452 (argued October 18, 2022).’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) The habeas court further concluded that,
‘‘even if [it] were to assume that the first three Golding
prongs have been satisfied, [the petitioner’s] inability
to cross-examine Marra was harmless error. [The peti-
tioner] himself, not Marra, provided the critical facts
needed to convict him in the attempted murder case
through his correspondence to Marra and his phone
conversation with Nobile. Therefore, [the petitioner]
has failed to demonstrate that he would have prevailed
on appeal had Stevenson raised a Crawford claim pur-
suant to Golding . . . .’’ (Emphasis in original.)
A
We first address the petitioner’s claim with respect to
Randolph. The petitioner claims that the habeas court’s
reasoning as to Randolph’s failure to raise a Crawford
claim ‘‘ignores that (1) the [United States] Supreme
Court’s then existing retroactivity rules made Crawford
applicable to the petitioner’s case, and (2) . . . Ran-
dolph testified that (a) he did not believe he would have
been aware of a [United States] Supreme Court decision
shortly after it was published, (b) he did not believe it
was his job to litigate the Crawford issue after it arose
for the petitioner, and (c) he did not believe he had
any basis to file a motion for new trial because . . .
Crawford . . . did not constitute new evidence.’’ (Foot-
note omitted.) The petitioner contends that a reason-
ably competent attorney would have moved for a new
trial pursuant to Practice Book § 42-53 on the ground
that the admission of Marra’s statements through Nobile
violated the petitioner’s right to confrontation as set
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Santaniello v. Commissioner of Correction
forth in Crawford. We conclude that the petitioner has
failed to establish that Randolph performed deficiently.
To provide the proper context for the petitioner’s
claim, we start with a brief review of Crawford. Prior
to Crawford, the United States Supreme Court had not
distinguished between testimonial and nontestimonial
statements for purposes of determining when the
admission of hearsay statements of unavailable wit-
nesses in criminal cases violated the confrontation
clause of the sixth amendment. See Crawford v. Wash-
ington, supra, 541 U.S. 71–72 (Rehnquist, C. J., concur-
ring in the judgment). Rather, under the previous test
set in forth Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531,
65 L. Ed. 2d 597 (1980), overruled in part by Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004), all such statements were admissible if
they had ‘‘adequate indicia of reliability . . . [which]
can be inferred . . . where the evidence falls within a
firmly rooted hearsay exception . . . [or pursuant to]
a showing of particularized guarantees of trustworthi-
ness.’’ (Internal quotation marks omitted.) Id., 66. The
court in Crawford described this test as ‘‘unpredictable’’
because ‘‘[w]hether a statement is deemed reliable
depends heavily on which factors the judge considers
and how much weight he accords each of them. . . .
[T]he unpardonable vice of the Roberts test, however,
is . . . its demonstrated capacity to admit core testi-
monial statements that the [c]onfrontation [c]lause
plainly meant to exclude.’’ (Citations omitted.) Craw-
ford v. Washington, supra, 63. To satisfy the constitu-
tional demand of confrontation prescribed by the sixth
amendment, the court reformulated the test to distin-
guish between testimonial and nontestimonial state-
ments, holding that testimonial evidence is not admissi-
ble under the sixth amendment, unless the witness is
unavailable and the defendant had a prior opportunity
to cross-examine the witness. See id., 68. In the present
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Santaniello v. Commissioner of Correction
matter, the petitioner argues that the standard adopted
in Crawford ‘‘created a new basis to exclude evidence
that might otherwise be admissible pursuant to the rules
of evidence. At a new trial . . . [Marra] would have
been ‘unavailable’ for purposes of cross-examination,
and the Crawford rule would have excluded all his
testimonial statements.’’ (Citation omitted.)
Notably, in Crawford, the court declined ‘‘to spell
out a comprehensive definition of ‘testimonial’ ’’; Craw-
ford v. Washington, supra, 541 U.S. 68; however, the
court observed that ‘‘[a]n accuser who makes a formal
statement to government officers bears testimony in a
sense that a person who makes a casual remark to an
acquaintance does not. . . . Various formulations of
this core class of testimonial statements exist: [1] ex
parte in-court testimony or its functional equivalent—
that is, material such as affidavits, custodial examina-
tions, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecu-
torially . . . [2] extrajudicial statements . . . con-
tained in formalized testimonial materials, such as affi-
davits, depositions, prior testimony, or confessions
. . . [and] [3] statements that were made under circum-
stances which would lead an objective witness reason-
ably to believe that the statement would be available
for use at a later trial . . . . Regardless of the precise
articulation, some statements qualify under any defini-
tion . . . . Statements taken by police officers in the
course of interrogations are also testimonial under even
a narrow standard. . . .
‘‘In sum, even if the [s]ixth [a]mendment is not solely
concerned with testimonial hearsay, that is its primary
object, and interrogations by law enforcement officers
fall squarely within that class.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 51–53. The court
acknowledged the dissent’s criticism that its ‘‘refusal
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Santaniello v. Commissioner of Correction
to articulate a comprehensive definition in [Crawford
would] cause interim uncertainty’’; id., 68 n.10; but it
reasoned that such a result ‘‘can hardly be any worse
than the status quo. . . . The difference is that the
[prior] test is inherently, and therefore permanently,
unpredictable.’’ (Citation omitted; emphasis in origi-
nal.) Id.
The petitioner specifically contends that Randolph
should have moved for a new trial pursuant to Practice
Book § 42-53 and argued that Marra’s out-of-court state-
ments should not have been admitted under Crawford.6
Even if the trial court had permitted such a motion
weeks after the verdicts were returned,7 a motion for
a new trial must be filed with the trial court before
sentencing. See State v. Ramos, 306 Conn. 125, 134,
49 A.3d 197 (2012) (under common law, trial court’s
jurisdiction over criminal case terminates once defen-
dant begins serving sentence). Consequently, in order
to raise a Crawford claim regarding Marra’s statements,
Randolph would have had to move for a new trial in
the eleven days between the release of Crawford and
the petitioner’s sentencing. In this eleven day period,
no court had further addressed or clarified the dividing
line between testimonial and nontestimonial state-
ments. Nevertheless, the petitioner asserts that ‘‘a rea-
sonably competent attorney in . . . Randolph’s shoes
6
Practice Book § 42-53 provides in relevant part: ‘‘(a) Upon motion of the
defendant, the judicial authority may grant a new trial if it is required in
the interests of justice. Unless the defendant’s noncompliance with these
rules or with other requirements of law bars his or her asserting the errors,
the judicial authority shall grant the motion:
‘‘(1) For an error by reason of which the defendant is constitutionally
entitled to a new trial; or
‘‘(2) For any other error which the defendant can establish was materially
injurious to him or her . . . .’’
7
Practice Book § 42-54 provides: ‘‘Unless otherwise permitted by the judi-
cial authority in the interests of justice, a motion for a new trial shall be
made within five days after a verdict or finding of guilty or within any further
time the judicial authority allows during the five-day period.’’
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Santaniello v. Commissioner of Correction
would have argued that, under Crawford, Marra’s testi-
monial statements should have been excluded and feel
confident in having a strong argument given the postver-
dict developments in this case.’’ We are not persuaded.
The petitioner’s argument assumes that the applica-
tion of Crawford to statements such as those made by
Marra to Nobile was immediately clear. Such was not
the case. In fact, our Supreme Court did not address
the application of Crawford to statements made by an
informant until four years later in State v. Smith, 289
Conn. 598, 622–27, 960 A.2d 993 (2008). Notably, by the
time our Supreme Court decided Smith, the United
States Supreme Court had further elaborated on the
third category of testimonial statements in Davis v.
Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L.
Ed. 2d 224 (2006), and created a ‘‘ ‘primary purpose’ ’’
test to distinguish between nontestimonial and testimo-
nial statements made to law enforcement. State v.
Smith, supra, 623. Even then, our Supreme Court made
clear that not all statements made by an informant are
testimonial. See id., 625.
In Smith, a jailhouse informant had approached fed-
eral authorities offering incriminating statements made
by the coconspirator about the defendant and subse-
quently agreed to wear a recording device and elicit
further incriminating statements from the coconspira-
tor. Id., 615. At the defendant’s trial for, inter alia, mur-
der and conspiracy to commit murder, the trial court
admitted into evidence a recorded conversation
between the informant and the coconspirator, and the
jury found the defendant guilty on all of the charges.
Id., 601–602. In his direct appeal to our Supreme Court,
the defendant claimed that the informant’s portion of
the conversation should have been excluded as testimo-
nial statements pursuant to Crawford. Id., 613–14. The
defendant sought review of his unpreserved Crawford
claim pursuant to State v. Golding, supra, 213 Conn.
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Santaniello v. Commissioner of Correction
239–40. Although our Supreme Court ultimately con-
cluded that the defendant could not prevail on the mer-
its of his Crawford claim because any error by the trial
court was harmless, the court assessed the testimonial
nature of the informant’s statements and concluded
that some were testimonial and violated the defendant’s
right to confrontation. See id., 628–29.
At the outset of its analysis, the court in Smith
observed that the defendant’s claim involved an issue of
first impression in Connecticut and noted that, ‘‘although
the consensus among the federal and state courts that
have considered this question is that an informant’s
portion of a recorded conversation with a defendant
made in the course of an investigation is not testimonial
in nature, the deciding factor in their determination is
the purpose for which the statements are introduced.
. . . When an informant’s statements were used only
to provide context for the incriminating statements of
the other party, these federal and state jurisdictions
have concluded that the informant’s statements were
neither hearsay nor considered testimonial statements
for the purposes of the confrontation clause.’’ (Citations
omitted; internal quotation marks omitted.) Id., 624–25.
Our Supreme Court agreed with the ‘‘contextual
approach’’ employed by those federal and state jurisdic-
tions ‘‘to the extent that an informant’s statements will
be deemed nonhearsay and nontestimonial when the
statements merely place the conversation in context
and serve no substantive purpose.’’ Id., 625–26. Applying
this approach, the court in Smith concluded that some
of the informant’s statements were testimonial and oth-
ers merely provided context for the coconspirator’s
statements. See id., 626–28. Nevertheless, the court con-
cluded that the defendant’s claim failed under Golding’s
fourth prong because the improper admission of those
statements constituted harmless error. See id., 628–30.
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Santaniello v. Commissioner of Correction
On the basis of the court’s analysis in Smith, it is
unclear whether all of Marra’s statements would be
considered testimonial even today. Certainly, not all of
Marra’s statements fall squarely and undoubtedly within
any of the three core categories of testimonial state-
ments expressly recognized in Crawford, nor were they
all used for hearsay purposes as observed in Smith.
Given the recognized lack of clarity in how Crawford
applied generally, and specifically as to the statements
of government informants, a posttrial claim by Ran-
dolph, made within days of when Crawford was issued,
would have tread new ground in an area in which the
United States Supreme Court itself had just rewritten
the law. As our Supreme Court noted shortly after
Crawford was decided, ‘‘[t]he express distinction
drawn by the United States Supreme Court in Crawford
between testimonial and nontestimonial hearsay state-
ments, for purposes of the confrontation clause, is a
novel one.’’ State v. Rivera, 268 Conn. 351, 364 n.13,
844 A.2d 191 (2004).
In essence, ‘‘the petitioner takes issue with his coun-
sel’s failure to assert a novel theory that [had] neither
been presented to, nor accepted by, the courts of this
state. As our Supreme Court has held, counsel’s failure
to advance novel legal theories or arguments does not
constitute ineffective performance. . . . To conclude
that counsel is obligated to recognize and to preserve
previously undecided constitutional claims, the viability
of which is purely speculative, would be to require
criminal defense lawyers to possess a measure of clair-
voyance that the sixth amendment surely does not
demand. . . . Thus, the failure of counsel to pursue
a novel constitutional argument does not constitute
ineffective assistance.’’ (Citations omitted; internal quo-
tation marks omitted.) Davis v. Commissioner of Cor-
rection, 198 Conn. App. 345, 358, 233 A.3d 1106, cert.
denied, 335 Conn. 948, 238 A.3d 18 (2020). ‘‘Counsel
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Santaniello v. Commissioner of Correction
. . . performs effectively when he elects to maneuver
within the existing law, declining to present untested
. . . legal theories.’’ (Internal quotation marks omit-
ted.) Ledbetter v. Commissioner of Correction, 275
Conn. 451, 462, 880 A.2d 160 (2005), cert. denied sub
nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368,
164 L. Ed. 2d 77 (2006).
Accordingly, we agree with the habeas court’s conclu-
sion that Randolph did not render deficient perfor-
mance in failing to raise a claim pursuant to Crawford
shortly after that decision was issued.8 See id., 461
(‘‘while the failure to advance an established legal the-
ory may result in ineffective assistance of counsel under
Strickland, the failure to advance a novel theory never
will’’ (internal quotation marks omitted)). Conse-
quently, the petitioner’s claim that Bansley rendered
ineffective assistance of counsel by not raising the
Crawford claim as to Randolph necessarily fails.
B
We next address the petitioner’s claim that Stevenson
provided ineffective assistance of counsel by failing to
raise a Crawford claim on direct appeal. More specifi-
cally, the petitioner claims that the habeas court
improperly concluded that Stevenson made a reason-
able decision not to pursue this claim on appeal given
the open question of whether review pursuant to State
v. Golding, supra, 213 Conn. 239–40, applied to a Craw-
ford claim and that the petitioner failed to demonstrate
a reasonable probability of success on appeal, as the
8
Because we conclude that Randolph did not perform deficiently by failing
to raise a Crawford claim, we need not address the prejudice prong under
Strickland. See Williams v. Commissioner of Correction, 223 Conn. App.
745, 753, 310 A.3d 381 (‘‘[i]t is well settled that courts may decide against
a petitioner on either prong [of the test articulated in Strickland v. Washing-
ton, supra, 466 U.S. 687, and Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985)], whichever is easier’’ (internal quotation marks
omitted)), cert. denied, 349 Conn. 901, 312 A.3d 586 (2024).
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admission of Marra’s statements would have consti-
tuted harmless error. We disagree with the petitioner.
The following legal principles inform our analysis of
the petitioner’s claim. ‘‘Under the performance prong
[of Strickland], [a] court must indulge a strong pre-
sumption that counsel’s conduct falls within the wide
range of reasonable professional assistance . . . .
[Although] an appellate advocate must provide effective
assistance, [she] is not under an obligation to raise
every conceivable issue. A brief that raises every color-
able issue runs the risk of burying good arguments
. . . in a verbal mound made up of strong and weak
contentions. . . . [I]f the issues not raised by his appel-
late counsel lack merit, [the petitioner] cannot sustain
even the first part of this dual burden since the failure
to pursue unmeritorious claims cannot be considered
conduct falling below the level of reasonably competent
representation.’’ (Emphasis in original; internal quota-
tion marks omitted.) Cator v. Commissioner of Correc-
tion, 181 Conn. App. 167, 176, 185 A.3d 601, cert. denied,
329 Conn. 902, 184 A.3d 1214 (2018).
In the present case, the petitioner did not preserve
a challenge to the admission of Marra’s statements at
trial, presumably because Crawford had yet to be
decided. Accordingly, to determine whether Stevenson
rendered deficient performance in the petitioner’s
direct appeal by failing to raise an unpreserved Craw-
ford claim pursuant to Golding, we must consider
whether that unpreserved claim would have survived
Golding review.
The second habeas court concluded that it ‘‘was rea-
sonable under the circumstances of this case for Steven-
son to not seek Golding review of a Crawford claim,
a type of review still not approved by the Supreme
Court.’’ In reaching that conclusion, the court failed to
recognize that, in State v. Greene, 274 Conn. 134, 167,
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Santaniello v. Commissioner of Correction
874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S.
Ct. 2981, 165 L. Ed. 2d 988 (2006), which was decided
months before Stevenson filed her appellate brief in
the petitioner’s direct appeal, our Supreme Court had
reviewed a defendant’s unpreserved Crawford claim
pursuant to Golding. In Greene, the defendant claimed
that the admission of hearsay statements made by
unavailable victims violated his right to confrontation
under the sixth amendment to the United States consti-
tution. Id., 165. Like the procedural history in the pres-
ent appeal, the underlying criminal trial in Greene con-
cluded before the release of Crawford. On appeal, the
defendant in Greene conceded that his sixth amend-
ment claim was not preserved at trial but asserted that
his unpreserved claim nevertheless was reviewable pur-
suant to Golding. Id., 142. Our Supreme Court agreed
that his unpreserved claim was reviewable under Gold-
ing’s first two prongs, as the record was adequate for
review and the claim was of constitutional magnitude.
See id., 167. Ultimately, however, the court rejected the
defendant’s claim on the merits under Golding’s third
prong, concluding that no constitutional violation
existed because the challenged statements were not
testimonial in nature. See id., 171–72. In light of Greene,
we disagree with the habeas court’s reasoning as to the
supposedly ‘‘open question’’ regarding Golding review
of unpreserved Crawford claims. Instead, we conclude
that Stevenson should have known that she could raise
an unpreserved Crawford claim pursuant to Golding.
The respondent, the Commissioner of Correction,
also argues that it would have been reasonable for Ste-
venson to conclude that Randolph had waived the
Crawford claim by failing to object to the introduction
of Marra’s statements through Nobile. We disagree.
‘‘[W]hen the law governing a defendant’s constitutional
claim has changed after the defendant’s trial, counsel
acting under binding precedent in effect at the time of
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Santaniello v. Commissioner of Correction
the trial cannot make a knowing and intelligent waiver
of rights affected by the later decision changing the
law.’’ State v. Johnson, 345 Conn. 174, 188–89, 283 A.3d
477 (2022).9 Further, although the respondent is correct
that Johnson had not been decided at the time of the
petitioner’s criminal trial, it would have been reason-
able for Stevenson to have relied on State v. Greene,
supra, 274 Conn. 134, in which trial counsel similarly
did not object to the challenged testimony prior to the
existence of a colorable claim under the confrontation
clause. Consequently, we address whether there was a
reasonable likelihood that the petitioner’s unpreserved
Crawford claim would have been successful on direct
appeal to determine whether Stevenson performed defi-
ciently in not raising such a claim and whether the
petitioner was prejudiced by her failure to do so.
Our analysis is guided by well established principles.
‘‘[The Golding doctrine] permits a [petitioner] to prevail
9
Both the habeas court and the respondent rely on footnote 8 in State v.
Johnson, supra, 345 Conn. 174, in positing that the question of whether
Golding applied to a Crawford claim was still uncertain. Id., 185 n.8 (‘‘The
question of whether and to what extent unpreserved claims alleging viola-
tions of Crawford . . . are subject to Golding review is currently pending
before this court. See State v. Robles, Docket No. SC 20452 (argued October
18, 2022).’’ (Internal quotation marks omitted.)). Further, the respondent
asserts that ‘‘[t]he [court in] Robles . . . thereafter determined that it did
not need to address the issue because, even if Golding applied, the state
had proven that any Crawford violation was harmless. . . . Thus, the issue
remains undecided.’’ (Citation omitted.) We disagree with the respondent’s
reading of Johnson and Robles. Although the footnote in Johnson; see State
v. Johnson, supra, 185 n.8; does indicate that the then pending appeal in
Robles would address the application of Golding to unpreserved Crawford
claims, the specific issue in Robles was whether the defendant had waived
his Crawford claim by failing to raise it at trial. See State v. Robles, 348
Conn. 1, 8, 301 A.3d 498 (2023). As we conclude in the present case, consistent
with our Supreme Court’s conclusion in Johnson and Greene, the petitioner
could not have waived his claim, given the unique circumstances in which
the governing law changed after the case was tried, which was not the case
in Robles. Moreover, as we stated previously, Greene dispels any uncertainty
of whether Golding review applies to Crawford claims such as the petition-
er’s.
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Santaniello v. Commissioner of Correction
on [an unpreserved] claim of constitutional error . . .
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the [petitioner] of a fair trial; and (4) if subject to harm-
less error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation
beyond a reasonable doubt. . . . [T]he first two
[prongs of Golding] involve a determination of whether
the claim is reviewable; the second two . . . involve a
determination of whether the [petitioner] may prevail.’’
(Internal quotation marks omitted.) Cator v. Commis-
sioner of Correction, supra, 181 Conn. App. 177–78.
‘‘We are free to respond to the [petitioner’s] claim by
focusing on whichever Golding prong is most relevant,
as the inability to meet any one prong requires a deter-
mination that the [petitioner’s] claim must fail.’’ (Inter-
nal quotation marks omitted.) Williams v. Commis-
sioner of Correction, 226 Conn. App. 617, 634, 319 A.3d
242, cert. denied, 350 Conn. 912, 324 A.3d 143 (2024).
In the present case, the reviewability prongs are satis-
fied because the record is adequate for review and the
petitioner’s Crawford claim is of constitutional magni-
tude and alleges the violation of a fundamental right.
As to the merits, we assume without deciding that all
of the statements attributed to Marra were testimonial
in nature and that their admission through Nobile vio-
lated the petitioner’s constitutional right to confronta-
tion.10 We therefore turn to Golding’s fourth prong,
which is dispositive of the petitioner’s claim.
10
In contrast to Randolph’s situation as the petitioner’s criminal trial
counsel, by the time Stevenson had filed the direct appeal in this matter,
courts had started to address whether statements made by unavailable
informants violated the confrontation clause. See, e.g., United States v.
Casiano, 133 Fed. Appx. 791, 794 (2d Cir. 2005); United States v. Hendricks,
395 F.3d 173, 184 (3d Cir. 2005); see also United States v. Silva, 380 F.3d
1018, 1020 (7th Cir. 2004) (‘‘[t]his court has warned against the potential
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The petitioner broadly asserts that, ‘‘[i]f Marra’s state-
ments and materials were excluded on confrontation
grounds, the state’s attempted murder case would have
unraveled, and the sexual assault case would have been
reduced to a credibility contest [between the petitioner
and the victim].’’ The respondent contends that, aside
from Marra’s statements, there was other ‘‘damning evi-
dence against the petitioner,’’ such as the petitioner’s
own statements, Holeman’s testimony, and information
from Nobile’s and Dillon’s independent investigations,
relevant to a harmless error analysis that would inform
counsel’s decision of what claims to raise. After care-
fully reviewing the record, we agree with the habeas
court that, both with respect to the sexual assault case
and the attempted murder case, any improper admis-
sion of Marra’s statements constituted harmless error.
‘‘[T]he test for determining whether a constitutional
[error] is harmless . . . is whether it appears beyond
a reasonable doubt that the [error] complained of did
not contribute to the verdict obtained. . . . [Our
Supreme Court] has held in a number of cases that
when there is independent overwhelming evidence of
guilt, a constitutional error would be rendered harmless
beyond a reasonable doubt. . . . [W]e must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless. . . . That determina-
tion must be made in light of the entire record [including
for abuse when police testify to the out-of-court statements of a confidential
informant’’). Although our Supreme Court did not address this issue until
three years after the direct appeal was filed in State v. Smith, supra, 289
Conn. 622–27, because the habeas court in the present case did not address
the issue, we decline to address the issue of whether Crawford would have
still been a novel claim at the time of the direct appeal and instead address
whether there was a reasonable likelihood that a Crawford claim relying
on Golding review would have been successful on direct appeal to determine
whether Stevenson performed deficiently in not raising such a claim.
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Santaniello v. Commissioner of Correction
the strength of the state’s case without the evidence
admitted in error]. . . . Additional factors that we have
considered in determining whether an error is harmless
in a particular case include the importance of the chal-
lenged evidence to the prosecution’s case, whether it is
cumulative, the extent of cross-examination permitted,
and the presence or absence of corroborating or contra-
dicting evidence or testimony.’’ (Internal quotation
marks omitted.) State v. Tony O., 211 Conn. App. 496,
526, 272 A.3d 659, cert. denied, 343 Conn. 921, 275 A.3d
214 (2022).
We first turn to the attempted murder case. Marra
was a significant figure in both the underlying criminal
activity and Nobile’s and Dillon’s investigations. He pro-
vided the initial information regarding the petitioner’s
intent to harm the victim. Nevertheless, the confronta-
tion clause would have limited the state’s ability to
present only Marra’s testimonial statements as evidence
and would not have affected its ability to present evi-
dence regarding Marra’s general involvement in the
case. See Crawford v. Washington, supra, 541 U.S. 61
(confrontation clause applies only to testimonial state-
ments). Mindful of this distinction between Marra’s gen-
eral involvement and his testimonial statements, we
conclude that any improperly admitted testimonial
statements were cumulative in light of all the other
evidence presented at the criminal trial.
The only evidence containing Marra’s statements
admitted in the attempted murder case includes exhibit
14, the letter from Marra to Nobile offering information
about the petitioner; exhibit 16, the transcript of Marra’s
phone conversation with the petitioner; exhibit 19, a
letter dated August 13, 2002, from Marra to the peti-
tioner asking for ‘‘Donna’s’’ plate number; and the infor-
mation that Nobile testified that Marra told him, includ-
ing the code used by the petitioner and Marra in their
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communications to identify the victim, her address, and
her license plate number.
As to Marra’s information about the code, the peti-
tioner argues that, ‘‘[w]ithout Marra’s explanation of
the coded communications contained in the letters, the
letters offered into evidence are not incriminating.’’ The
state, however, established the significance of the let-
ters without Marra’s explanation.
Both Dillon and Nobile testified that they indepen-
dently ascertained the victim’s address, license plate
number, and her vehicle’s make and model, and that
the victim’s identifying information appeared in the peti-
tioner’s letters. Indeed, Marra’s statements to Nobile
were unnecessary to decode the petitioner’s rudimen-
tary efforts to hide the identifying information about
the victim in his communications with Marra. In exhibit
13, the letter from the petitioner to Marra dated Septem-
ber 9, 2002, the victim’s address was written on the
envelope, and the letter referenced a ‘‘white four-door
Blazer.’’ Given that both Nobile and Dillon knew the
victim’s identifying information, a plain reading of the
letter made it apparent that the petitioner was con-
veying the victim’s identifying information in those let-
ters. Additionally, the encoding of the license plate
‘‘190RSD’’ as ‘‘[o]ne ninety Rose Soap Dish’’ in the letter
was not complex, and the petitioner—not Marra—pro-
vided the explanation of his code in his recorded con-
versation with Marra. Thus, the petitioner’s statements,
not Marra’s, provided a solution to the code, to the
extent one was needed.
The only explanation of the ‘‘code’’ that originated
solely from Marra was that ‘‘Donna’’ referred to the
victim and that ‘‘Joe Black’’ referred to the petitioner.
Although the information about the aliases was used
to establish that the petitioner was writing the letters
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Santaniello v. Commissioner of Correction
and providing the victim’s information, the state estab-
lished through many different sources at trial that the
petitioner was the author of the letters and that the
letters contained the victim’s identifying information.
The petitioner referenced the letters he sent Marra dur-
ing his recorded phone calls with Nobile and Marra,
transcripts of which were admitted into evidence as
exhibits 17 and 16, respectively. Further, Nobile’s testi-
mony that Joe Black symbolized death was based on
Dillon’s research suggesting that the alias was a refer-
ence to the movie, ‘‘Meet Joe Black.’’ Similarly, the
explanation of the alias ‘‘Donna’’ was unnecessary,
given the testimony of Dillon and Nobile linking the
identifying information in the letter to the victim, which
removed any doubt about the identity of ‘‘Donna.’’ More-
over, the petitioner’s own affirmative reply to Nobile
mentioning ‘‘Donna’’ during their phone call further con-
firmed this fact. Therefore, Marra’s statements about
the code were cumulative and unnecessary to the state’s
case, as there was an abundance of other evidence
establishing the meaning of the letters.
Exhibit 14, the letter sent to Nobile from Marra in
August, 2002, exhibit 19, the letter from Marra to the
petitioner dated August 13, 2002, and Marra’s verbal
statements to Nobile and Dillon identifying the peti-
tioner as someone who wanted a victim killed also were
cumulative in light of the petitioner’s own statements
establishing that fact. As the habeas court concluded,
‘‘[the petitioner] himself, not Marra, provided the criti-
cal facts needed to convict him in the attempted murder
case through his correspondence to Marra and his
phone conversation with Nobile.’’ In particular, letters
from the petitioner to Marra, one postmarked August
8, 2002, and the other dated September 9, 2002, exhibits
12 and 13, respectively, demonstrate that the petitioner
sent Marra the victim’s identifying information when
requested. The petitioner’s statements made during his
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Santaniello v. Commissioner of Correction
recorded phone calls with Nobile, transcripts of which
were admitted as exhibits 16 and 17, in which he
acknowledged the identifying information in the letters
sent to Marra, established a link between his correspon-
dence with Marra and contracting with Nobile to be
the assassin. Specifically, during his recorded phone
call with Nobile on October 14, 2002, exhibit 17, the
petitioner confirmed the price when prompted by Nob-
ile, gave a time frame for the murder, and confirmed that
the target was ‘‘Donna.’’ Further, during their recorded
phone call on October 18, 2002, exhibit 18, the petitioner
discussed meeting with Nobile to give him some of the
money. In addition, the evidence seized by law enforce-
ment at the petitioner’s residence, including Marra’s
contact information and information about the victim,
further established the petitioner’s relationship with
Marra and his intent to kill the victim. Likewise, Hole-
man’s testimony, despite the minor role that it played,
provided confirmation of both Marra’s relationship with
the petitioner and the petitioner’s intent to harm the vic-
tim.
Although the petitioner asserts in his reply brief that
the state’s closing argument demonstrates the state’s
reliance on Marra to prove the attempted murder
charge, the record reflects otherwise. To be sure, Marra
features prominently in the state’s narration of events
because he first alerted the state to the petitioner’s
interest in killing the victim and was the conduit who
introduced Nobile to the petitioner. Nevertheless, dur-
ing its closing argument, the state distinguished
between Marra’s involvement and Marra’s statements
by relying on Nobile’s and Dillon’s independent investi-
gations and the petitioner’s own statements and actions.
For example, after describing the September 4, 2002
meeting, the prosecutor argued to the jury, ‘‘Nobile
indicated that what they did is, they took this informa-
tion and other information that they had gotten from
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Santaniello v. Commissioner of Correction
. . . Marra. The name of the victim, the address of the
victim, and the other information regarding the victim
and they tried to corroborate information. Because they
weren’t going to [accept] the word of . . . Marra.’’ The
state then explained the contents of the letters using
information sourced independently by Nobile and Dil-
lon. The prosecutor then argued that the state used the
petitioner’s own statements referring to the encoded
information to demonstrate that ‘‘[the petitioner] shows
full knowledge of what the plan is here.’’ Consequently,
we agree with the habeas court that the admission of
Marra’s statements with regard to the attempted murder
case was harmless beyond a reasonable doubt because
the petitioner’s own statements and Dillon’s and Nob-
ile’s independent investigations rendered Marra’s state-
ments of little value.
For these same reasons, the admission of Marra’s
statements in connection with the sexual assault case
was harmless beyond a reasonable doubt. As discussed
previously, Marra’s statements about the attempted
murder were cumulative of the other evidence pre-
sented. Further, evidence of the attempted murder was
not the focus of the sexual assault case but was intro-
duced primarily as consciousness of guilt evidence. The
state relied on other ample evidence of the petitioner’s
guilt, including: (1) the victim’s own testimony; (2) pho-
tos of the victim’s injuries; (3) the corroboration of
the victim’s testimony by two witnesses; (4) the other
extrinsic evidence introduced, including the victim’s
sweatpants with the broken drawstring; (5) the expert
witness who testified that the forensic examination
revealed that the victim’s underwear contained the peti-
tioner’s DNA; and (6) Holeman’s testimony that the
petitioner described the sexual assault charge as a date
that went too far. Thus, contrary to the petitioner’s
argument, the state’s sexual assault case was based on
much more evidence than Marra’s statements and the
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Santaniello v. Commissioner of Correction
word of the victim. Against this backdrop, Marra’s state-
ments were insignificant to the overall strength of the
state’s case.
In sum, after a careful review of the record, we con-
clude that the petitioner’s claim fails to satisfy Golding’s
fourth prong due to the cumulative nature of Marra’s
statements and the other independent evidence of the
petitioner’s guilt. For this reason, we cannot conclude
that Stevenson’s strategic decision to forgo the Craw-
ford claim was unreasonable. Moreover, even if we were
to so conclude, it is clear that the petitioner was not
prejudiced by Stevenson’s failure to raise the Crawford
claim because there was not a reasonable likelihood
that it would have succeeded on appeal. For these rea-
sons, the petitioner’s claim that Bansley rendered inef-
fective assistance of counsel by not raising the Craw-
ford claim as to Stevenson necessarily fails.
II
The petitioner’s final claim is that Bansley rendered
ineffective assistance in the first habeas by failing to
argue that Randolph performed deficiently in failing to
pursue a claim that the state had violated the petition-
er’s right to counsel pursuant to Massiah v. United
States, supra, 377 U.S. 201, by using Marra to elicit
incriminating statements from him. The following addi-
tional facts and procedural history, as set forth by this
court in State v. Santaniello, supra, 96 Conn. App. 646,
are relevant to the petitioner’s Massiah claim.
‘‘On July 29, 2003, the [petitioner] filed a ‘request for
discovery and production,’ in which he requested that
the state produce exculpatory information, books,
papers or documents that the state intended to offer
into evidence or which might be helpful to the defense,
copies of the [petitioner’s] criminal record, reports of
experts, warrants related to the [petitioner], written or
oral statements made by the [petitioner], statements of
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Santaniello v. Commissioner of Correction
coconspirators, names and addresses of all witnesses,
statements of witnesses, felony or misdemeanor convic-
tions of witnesses and any other relevant material and
information.
‘‘During jury voir dire on December 18, 2003, a discus-
sion ensued related to the production of documents in
which both [Randolph] and the state initially agreed
that the court should conduct an in camera review of
Marra’s [D]epartment of [C]orrection file. The court
then stated that it wanted the state to review the file
first and to discuss the procedure with [Randolph]. The
court explained that the state had a duty to conduct
the initial review of these documents. The state agreed,
and [Randolph] then told the court that he would ‘indi-
cate to the [c]ourt what it is in the file that would be
of material benefit to the defense were it included in
the file.’ [Randolph] explained that he wanted the file
reviewed for information that would benefit the [peti-
tioner’s] entrapment defense and for information indi-
cating that Marra was an operative informant of the
state on an ongoing basis. The court then, specifically
to protect the record, told [Randolph] that he should
make a precise written request as soon as possible as
to what materials he believed might be in the state’s
possession and why they should be disclosed, to which
[Randolph] responded: ‘Certainly.’ The court continued:
‘I think that would be a good idea because in the event
of an appeal, then there is no misunderstanding, no
mistake. If you want something for truthfulness, some-
thing to establish the nature and extent of any relation-
ship with the state, agency relationship now or ever,
character evidence, whatever you want. Just put it in
writing so the state knows what you want and so if I
get involved in reviewing the materials, I can be aware
of them.’ [Randolph] then thanked the court and agreed
that he would put his request in writing sooner rather
than later. . . .
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Santaniello v. Commissioner of Correction
‘‘On January 5, 2004, during oral argument on these
motions, the court asked if [Randolph] still wanted the
court to review the [D]epartment of [C]orrection docu-
ments in camera to assess whether there was ‘a continu-
ing relationship such that . . . any statements made
at any [time would not be] admissible for any purpose.’
[Randolph] responded: ‘That’s right.’ The court stated
that it wanted to hear further argument on these
motions later in the day, and it then would determine if
it needed to conduct an in camera review of documents.
Later that day, [Randolph] agreed that the reason he
was seeking disclosure and the court’s review of these
documents ‘pertain[ed] to a claim that Marra at some
point became an agent of the government and the state-
ments ought to be suppressed . . . .’ The court, again,
explained that it was the duty of [the] state to review
these documents first. [Randolph] expressly stated that
the court was correct. He then stated: ‘I think . . . [the
prosecutor] as an officer of the court would probably
disclose to me if there were [any material disclosable
under Giglio v. United States, 405 U.S. 150, 92 S. Ct.
763, 31 L. Ed. 2d 104 (1972), or Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)] in the
records anyway. . . . So, I don’t have any concern that
[the prosecutor] go through the records rather than
have . . . an in camera inspection at the outset. I
would agree that [the prosecutor] should have an oppor-
tunity to do that.’ Following a recess, the court
explained for the record that it had spoken to both
counsel in chambers concerning, among other things,
these motions, and the court suggested that the prose-
cutor review the records for exculpatory information
or anything related to an agency relationship that Marra
had with the government and that it would be best to
‘keep the court out of the loop at this point.’ Both
[Randolph] and the state expressly agreed. The court
also stated that in light of this, it did not need to act
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Santaniello v. Commissioner of Correction
on the motion for disclosure of records at this time.
Again, both [Randolph] and the state expressly agreed.
In relation to the motion to suppress, [Randolph] stated
that if nothing in the documents revealed an ongoing
agency relationship between Marra and the govern-
ment, then, for purposes of this case, the agency rela-
tionship began between September 4 and 18, 2002.
‘‘During further discussion on these motions on Janu-
ary 8, 2004, the prosecutor explained that he had
obtained the [D]epartment of [C]orrection documents
on Marra and that he had some exculpatory material
as well as other material that questionably could be
disclosable. The court directed the prosecutor to turn
over anything that he believed the [petitioner] was enti-
tled to obtain and that if after meeting with [Randolph]
there remained questionable documents, they should
be brought to chambers so that the court could inspect
them. Both [Randolph] and the state agreed.
‘‘After a recess during which the state and [Randolph]
met, the prosecutor affirmed that he had turned over
to [Randolph] all documents that, even arguably, could
be discoverable or related to the issue of agency. There-
after, the [petitioner] did not renew his request that the
court conduct an in camera review of documents or
argue that some documents had not been turned over
or that the court needed to take any further action on
his motion for disclosure of records. . . . [I]t appears
that the issue of disclosure and the necessity for an in
camera inspection had been addressed fully at this time
and that the court had nothing further upon which to
act related to this motion or request.
‘‘On January 12, [2004], several days after Marra’s
[D]epartment of [C]orrection documents had been
turned over to the [petitioner], the court heard further
oral argument on the [petitioner’s] motion to suppress
statements that he had made to Marra. . . . [T]he court
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Santaniello v. Commissioner of Correction
did not rule on this motion. Rather, the state and [Ran-
dolph] agreed on the admissibility of these statements,
thereby rendering the motion moot.
‘‘During the January 12, [2004], hearing, the [peti-
tioner] agreed that for purposes of this case, Marra had
not been acting as an agent of the government prior to
September 4, 2002, and that any statements made prior
to that date were admissible fully. The [petitioner] also
agreed that the statements he made to Marra after Sep-
tember 4, 2002, were admissible as to the attempted
murder information, with one exception. The [peti-
tioner] did not agree that a September 9, 2002, letter
written by the [petitioner] to Marra [(exhibit 13)] was
admissible. The court then concluded that the parties
had reached agreement on all but one of the statements
sought to be suppressed, and it stated that it would
make a ruling on the admissibility of that September
9, 2002 letter later in the day. Counsel did not object.11
‘‘During the testimony of Nobile later that day, the
state offered the September 9, 2002 letter into evidence,
and [Randolph] specifically stated that he had no objec-
tion. The court, sua sponte, immediately explained to
the jury that it would have further instructions for it at
11
Specifically, the state contended that the letter in exhibit 13, although
dated September 9, 2002, was responsive to the August 13, 2002 letter from
Marra to the petitioner (exhibit 19) and, therefore, was elicited by Marra prior
to September 4, 2002, and could not be suppressed pursuant to Massiah.
Randolph initially was unwilling to concede this point because ‘‘[the letter]
may have been in response to a telephone call from [Marra] subsequent to
September 4, 2002.’’ No such evidence was offered during the hearing or
trial. Randolph agreed with the court’s suggestion to think about the issue
further and for the court to address the admissibility of exhibit 13 in the
sexual assault case later. Randolph further agreed with the state that exhibit
13 would be admissible in the attempted murder case and could be presented
as evidence at trial. Upon the prosecutor’s informing the court of his intention
to introduce exhibit 13 through Nobile, the court suggested that it would
inform the jury that it would give specific instructions concerning the precise
nature of the letter’s admissibility in the court’s closing instructions. Both
Randolph and the state agreed.
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Santaniello v. Commissioner of Correction
a later time concerning how this and other letters could
be treated by the jury and for what purposes they might
be considered.’’ (Footnote added; footnotes omitted.)
Id., 664–68.
Specifically, at the close of the petitioner’s criminal
trial, the court instructed the jury that ‘‘[a]ny statements
with the exception of state’s exhibit 12 made by the
[petitioner] to [Marra] or [Nobile] after September 4,
2002, the date [Marra] became a person cooperating
with the government for purposes of this case, may not
be considered by you at all in your evaluation of the
charges of sexual assault in the first degree, burglary
in the first degree, and kidnapping in the first degree in
docket number CR-02-122734.’’ Exhibit 12 was admitted
solely as consciousness of guilt evidence. The court
also instructed the jury that exhibit 13, the September
9, 2002 letter, could be considered only as conscious-
ness of guilt evidence in the sexual assault case.12
At the second habeas trial, Randolph testified about
his view of the viability of a Massiah challenge based
on Marra’s having acted as an agent of the government
prior to September 4, 2002, during the following
exchange between the petitioner’s counsel and Ran-
dolph:
‘‘[The Petitioner’s Counsel]: Alright. So, if Tommy
Marra was an informant working for the state at the
time he approached [the petitioner], would that be a
basis to try and exclude the information reportedly
gleaned by [Marra] from [the petitioner]?’’
‘‘[Randolph]: I don’t think it can be argued that he
was an agent working for the state. The state did not
12
It follows that the court accepted the state’s argument that exhibit 13
was responsive to exhibit 19, the August 13, 2002 letter, and was elicited
by Marra prior to September 4, 2002. See footnote 11 of this opinion. Ran-
dolph did not raise any objections to the admission of exhibit 13 or the
court’s instructions thereto.
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Santaniello v. Commissioner of Correction
prompt, apparently, [Marra] to do anything. He initiated
contact, and so I do not think those facts go to, basically,
the state breaching [the petitioner’s] sixth amendment
right to counsel, or his fifth amendment right.’’
In its memorandum of decision, the habeas court
found that Randolph did not render ineffective assis-
tance because he had raised the claim ‘‘to the extent
that he was able to rely on [Massiah].’’ The court found
that the petitioner’s right to counsel in the attempted
murder case did not attach until after the investigation
into the attempted murder was concluded. With respect
to the sexual assault case, in which the petitioner’s right
to counsel had attached prior to his involvement with
Marra, the habeas court concluded that Massiah had
limited application as delineated by the trial court.
In the present appeal, the petitioner claims that Ran-
dolph rendered ineffective assistance by not arguing
that ‘‘the state . . . should be deemed to have had a
tacit ongoing agreement with Marra, in which Marra
would provide information about any criminal defen-
dants available to him in exchange for the promise of
a potential benefit . . . .’’ The petitioner asserts that,
had Randolph not abandoned the Massiah challenge,
this tacit ongoing agreement between Marra and the
state would have provided a basis for the suppression
of all evidence of the attempted murder plot in the
sexual assault case, reducing the sexual assault case
to a credibility contest between the petitioner and the
victim. The respondent argues that the petitioner failed
to present evidence that supports his claim.13 We agree
with the respondent.
13
The respondent also contends on appeal that the record is inadequate to
review the petitioner’s claim that Marra had a preexisting agency relationship
with law enforcement because the court relied on its determination that
the petitioner’s right to counsel had not yet attached in the attempted murder
case. In response, the petitioner argues that this reliance means that ‘‘the
habeas court necessarily rejected the petitioner’s argument that Marra was
a state agent at the time of his initial approach, because, otherwise, that
would have also served as a basis to suppress the material and information
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Santaniello v. Commissioner of Correction
The record from the petitioner’s criminal trial and
the habeas trial is clear that Randolph made a tactical
decision not to pursue the precise Massiah challenge
raised by the petitioner in the present case. Counsel is
presumed to have made a sound strategic decision when
he elected not to pursue such a challenge, unless the
petitioner rebuts that presumption with sufficient evi-
dence that counsel’s decision was objectively unreason-
able. See Williams v. Commissioner of Correction, 142
Conn. App. 744, 752, 68 A.3d 111 (2013). The petitioner
argues that Randolph’s limited approach to challenging
Marra’s role as a government agent was objectively
unreasonable because Marra, during all of his interac-
tions with the petitioner, was acting as an agent of the
state pursuant to an implicit understanding. We are not
persuaded.
‘‘In a line of cases extending from Massiah v. United
States, [supra, 377 U.S. 201], through United States v.
Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115
(1980), to Maine v. Moulton, [474 U.S. 159, 106 S. Ct.
supplied by Marra . . . .’’ We conclude that the record is adequate to review
the petitioner’s Massiah claim.
With respect to the sexual assault case, the court found that, considering
the limited use of the petitioner’s statements to Marra, Massiah had limited
application. Consequently, the court concluded that Randolph did not render
ineffective assistance by raising Massiah in the manner that he did. On
appeal, the petitioner alleges harm from the limited admission of the evi-
dence in the sexual assault case and argues that the alleged tacit ongoing
agreement between Marra and the state provided a basis for the suppression
of all evidence of the attempted murder plot in the sexual assault case.
Although the habeas court did not make any factual findings as to the
alleged agency relationship, it is well settled that, ‘‘to the extent that the
resolution of [the issue of agency] calls for application of the controlling
legal standard to the historical facts, it presents a . . . question of law . . .
which [this court reviews] de novo. . . . Such a review is not limited to
the facts the trial court actually found in its decision on the defendant’s
motion to suppress. Rather, [this court] may also consider undisputed facts
established in the record, including the evidence presented at trial.’’ (Citation
omitted; footnote omitted; internal quotation marks omitted.) State v. Ashby,
336 Conn. 452, 467–68, 247 A.3d 521 (2020).
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Santaniello v. Commissioner of Correction
477, 88 L. Ed. 2d 481 (1985)], the United States Supreme
Court has held that a state violates the sixth amendment
when, acting through an undisclosed agent, it deliber-
ately elicit[s] incriminating statements from an accused
after he ha[s] been indicted and his right to counsel
has attached.’’ (Internal quotation marks omitted.) State
v. Swinton, 268 Conn. 781, 854–55, 847 A.2d 921 (2004).
‘‘The general nature of this constitutional duty is clear:
[T]he [s]tate [has] an affirmative obligation to respect
and preserve the accused’s choice to seek [the] assis-
tance [of counsel].’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Ashby, 336 Conn. 452,
469, 247 A.3d 521 (2020).
In order to succeed on a claim that his sixth amend-
ment right to counsel was violated pursuant to Massiah,
the petitioner must prove the following: ‘‘(1) the [s]ixth
[a]mendment right to counsel ha[d] attached; (2) the
individual seeking information from the [petitioner was]
a government agent acting without the [petitioner’s]
[counsel] being present; and (3) that agent deliberately
elicit[ed] incriminating statements from the [peti-
tioner].’’ (Internal quotation marks omitted.) Id., 465.
Although there is no bright-line test for an agency rela-
tionship, our Supreme Court has provided guidance on
determining whether such a relationship exists.
‘‘The existence of an agency relationship . . . turns
upon a number of factual inquiries into the extent of
police involvement with the informant. Those inquiries
include the following: whether the police have promised
the informant a reward for his cooperation or whether
he is self-motivated . . . whether the police have
asked the informant to obtain incriminating evidence
and placed him in a position to receive it . . . and
whether the information is secured as part of a govern-
ment initiated, [preexisting] plan.’’ (Internal quotation
marks omitted.) Id., 475. ‘‘[I]n the absence of any such
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Santaniello v. Commissioner of Correction
directive or promise, ‘a trial court [correctly] may deter-
mine that an informant was not so much a government
agent . . . as he was an entrepreneur who hoped to
sell information to the government.’ ’’ Id., 524 (Mullins,
J., concurring in part and dissenting in part).
In the present case, the petitioner acknowledges that
there is no evidence that the state expressly asked
Marra to secure information from the petitioner. Nor
is there any evidence that the state directly made any
promise to Marra of a benefit if he did so. Instead, the
petitioner argues that ‘‘Marra’s long experience as a
jailhouse informant, combined with his parallel meet-
ings with other law enforcement personnel beyond
those involved with the instant investigation, and his
continued retention of the same attorney to represent
him in his dealings with the state created a course of
conduct from which can be inferred an implicit agency
relationship between the state and Marra at the time
he began providing information against the petitioner.’’
In particular, the petitioner relies on Nobile’s testi-
mony at the petitioner’s criminal trial that he had pre-
viously accompanied another inspector to interview
Marra about an unrelated homicide case, as well as
Marra’s documented involvement in State v. Tomasko,
242 Conn. 505, 700 A.2d 28 (1997), to demonstrate that
Marra’s role as a state informant was ‘‘enormous
. . . .’’ In Tomasko, the defendant claimed that the state
had failed to disclose audiotapes of police interviews
with Marra, which the defendant argued suggested Mar-
ra’s potential involvement in the victim’s death. Id., 514.
In resolving that claim, our Supreme Court discussed
Marra’s involvement with police, noting that ‘‘Marra
[had] indicated that, commencing in October, 1985, he
had been interviewed on several occasions by . . . var-
ious other police officials about a number of subjects’’;
id., 515; and that Marra ‘‘had been questioned about
more than twenty homicides.’’ Id., 516. At the underlying
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Santaniello v. Commissioner of Correction
habeas trial, Gailor confirmed the accuracy of the state-
ments in Tomasko regarding Marra.
The petitioner argues, relying on United States v.
Brink, 39 F.3d 419 (3d Cir. 1994), that, even in the
absence of an express directive from law enforcement,
these past interactions constituted evidence of the exis-
tence of a tacit agreement between law enforcement
and Marra that would have supported a successful Mas-
siah challenge as to all statements the petitioner made
to Marra. In Brink, the United States Court of Appeals
for the Third Circuit found evidence of an agency rela-
tionship where the record reflected that the inmate
began to inform on other inmates in the hope of having
his sentence reduced, the inmate received government
training as an informant, and the inmate was told by a
government agent that his cooperation would be
reported to the United States Attorney and Attorney
General. See id., 424. The court concluded that these
facts could have led the informant to reasonably assume
that the government was aware of his actions and would
reward him. See id.
The present case is clearly distinguishable. Unlike
in Brink, there is no indication that law enforcement
provided any direction or instruction to Marra regarding
the petitioner prior to September 4, 2002. Instead, the
evidence in the present case is similar to that in State
v. Swinton, supra, 268 Conn. 856, in which our Supreme
Court rejected an almost identical Massiah claim to
that made by the petitioner. In Swinton, the defendant
claimed that a jailhouse informant ‘‘was acting as an
agent throughout his interaction with the defendant
because, based on his ongoing relationship with the
state police, [the informant] had gathered information
for the state ‘in the hope and expectation of obtaining
release from prison’ and thus, the state ‘created a situa-
tion in which incriminating statements were likely to
be made.’ ’’ Id., 854. The court concluded that,
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Santaniello v. Commissioner of Correction
‘‘[a]lthough [the informant] had been cooperating with
the police in connection with a separate unrelated inves-
tigation and already had provided information with
regard to that other investigation, this conduct did not
transform him into an agent.’’ Id., 856. The court also
noted the trial court’s findings that ‘‘there is no evidence
whatsoever that the police had instructed [the infor-
mant] to gather information about this case, about
crimes in general, or about any other case in particular,
nor is there any evidence that the police had indicated
to [the informant] that he would be rewarded in any
way by providing information about crimes in general
or about any other case in particular or about this case.’’
(Internal quotation marks omitted.) Id., 857.
The same is true in the present case. The evidence
from the petitioner’s criminal trial was clear that Marra
initiated contact with the state about the petitioner by
sending a letter to Nobile. Furthermore, Dillon testified
that he never asked Marra to collect information on the
petitioner and that neither Nobile nor any other member
of the Office of the Chief State’s Attorney or law
enforcement had done so. Marra’s Department of Cor-
rection file, which was disclosed to Randolph during
trial, reflects this lack of a preexisting relationship, as
it exclusively contains voluntary interview statements
signed by Marra and dated after September, 2002. The
petitioner offered nothing to refute this evidence.
Further, although Marra clearly sought a benefit from
working with the state, Nobile testified that, with
respect to each of Marra’s requests, the state neither
promised nor provided Marra any benefit. See State v.
Lasaga, 269 Conn. 454, 466, 848 A.2d 1149 (2004) (pri-
vate citizen was not state agent when he neither was
promised nor provided any benefit in exchange for
information). Moreover, although the petitioner finds
it significant that Marra was placed in a cell with a
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Santaniello v. Commissioner of Correction
pretrial detainee, there is no evidence that the place-
ment was purposeful. Cf. United States v. Brink, supra,
39 F.3d 424 (finding that it was significant that, after
inmate became informant for police, government placed
informant in cell with pretrial detainee). To the con-
trary, Hall testified in the criminal proceeding that there
were no records showing any request for Marra to be
placed in the petitioner’s cell.
Simply put, the evidence available to Randolph did
not support the broad Massiah claim that the petitioner
argues should have been made. Thus, we cannot con-
clude that Randolph’s pursuit of his Massiah challenge
as to the statements made by the petitioner to Marra was
objectively unreasonable. Randolph raised a Massiah
claim before the trial court to the extent he believed
one was factually supported and was successful in sup-
pressing the petitioner’s statements made to Marra after
September 4, 2002, in the sexual assault case, with the
exception of exhibits 12 and 13, which were admitted
solely as consciousness of guilt evidence. Although Ran-
dolph did not continue to pursue suppression of the
petitioner’s statements to Marra prior to September 4,
2002, we conclude that this decision was guided by
professional judgment made after reviewing the rele-
vant evidence, which included Marra’s Department of
Correction records that showed meetings with the state
that occurred only after September, 2002, testimony
from a Department of Correction employee explaining
that there was no record of the petitioner being purpose-
fully housed with Marra, the letter from Marra to Nobile
offering information about the petitioner, and testimony
by both Dillon and Nobile that reflected a lack of inter-
action with Marra prior to September 4, 2002. The deci-
sion to limit the Massiah challenge in light of this evi-
dence therefore falls into the category of trial strategy
that we consistently have declined to second-guess.
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Santaniello v. Commissioner of Correction
Consequently, we agree with the habeas court’s conclu-
sion that Randolph did not render deficient perfor-
mance in failing to pursue a more expansive Massiah
challenge. Accordingly, the petitioner’s claim that Ban-
sley rendered ineffective assistance of counsel by not
raising a Massiah claim as to Randolph necessarily fails.
The judgment is affirmed.
In this opinion the other judges concurred.
Case Information
- Court
- Conn. App. Ct.
- Decision Date
- February 25, 2025
- Status
- Precedential