Bowman v. Warden

Full title: Curtis Bowman (#195865) v. Warden

Court: Superior Court of Connecticut

Date published: Aug 17, 2016

CV134005480 (Conn. Super. Ct. Aug. 17, 2016)

Opinion

CV134005480

08-17-2016

Curtis Bowman (#195865) v. Warden

Vernon D. Oliver, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Vernon D. Oliver, J.

The petitioner, Curtis Bowman, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and DENIES the petition.

I

Procedural History

In the criminal matter State v. Curtis Bowman, NNH-CR03-0019063, in the New Haven Judicial District, the petitioner, after jury trial, was convicted of murder, in violation of Connecticut General Statutes § 53a-54a(a); arson in the second degree, in violation of Connecticut General Statutes § 53a-112(a)(1)(B); and two counts of tampering with physical evidence, in violation of Connecticut General Statutes § 53a-155(a)(1). On January 20, 2006, the court, Devlin, J., sentenced the petitioner to a total effective sentence of sixty years incarceration. The petitioner appealed the conviction, which was affirmed by the Appellate Court. State v. Bowman, 289 Conn. 809, 960 A.2d 1027 (2008), overruled by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).

The following findings of that court are relevant to a disposition of the instant petition:

The jury reasonably could have found the following facts. The defendant has a history of suffering from psychosis, which causes him auditory hallucinations, delusions and severe fear, paranoia and anxiety. He has been both institutionalized and treated with a variety of antipsychotic medications. For the most part, however, when not institutionalized, the defendant has failed to continue taking his medications because he has no health insurance and cannot independently afford the medication. During these periods, the defendant often has resorted to the abuse of alcohol and illegal drugs, including marijuana, cocaine, ecstasy, phencyclidine or PCP, and " wet, " which is marijuana that has been dipped in embalming fluid.

The defendant and the victim, Laurisse DaSilva, began dating in November 2002, and dated for nearly seven months leading up to the day of the murder. Throughout their relationship, the defendant and the victim regularly abused both alcohol and illegal drugs. On the morning of July 13, 2003, the defendant and the victim were heavily under the influence of alcohol and illegal drugs when they drove with the defendant's brother to drop him off at work. They continued to use illegal substances during the course of the trip, stopping one time on the side of the road. The defendant's brother testified at trial that on that morning, the defendant and the victim were " high out of their mind[s]..." On the way home, the defendant and the victim drove to a secluded road in New Haven.

Thereafter he and the victim consumed more illegal drugs, including cocaine and marijuana, they got into an argument, and, while still in the car, the defendant stabbed the victim several times in the chest and neck with a knife. When the victim then got out of the car and tried to run away, the defendant backed the car over her. He then beat her with a tire iron, causing blunt trauma to her head, chest and abdomen. Finally, he lifted the victim's body, put her in his car, and drove to a secluded dead-end street fourteen blocks away, where he dragged her body from the car and concealed it in a brush area.

The defendant then drove home, where he met his mother and appeared visibly confused about what had transpired and the victim's whereabouts. After telling his mother that he would go look for the victim, the defendant then drove his car to a secluded and abandoned parking lot. There, he removed the tire iron from the car, placed the bloody knife in the car, and set the car on fire using gasoline, trash and matches. After returning home on foot, the defendant turned himself in to the police and confessed to killing the victim.

The defendant subsequently was charged with murder, arson in the second degree, and two counts of tampering with physical evidence. At trial, both the state and the defense presented evidence, including expert testimony, regarding the defendant's history of psychosis and its effect on the defendant at the time of the murder. The jury returned a guilty verdict on all four counts. The trial court rendered judgment in accordance with the verdict, and this appeal followed...

The following undisputed additional facts and procedural history are relevant to our resolution of this claim. At trial, the defendant asserted extreme emotional disturbance as an affirmative defense. He presented both lay and expert testimony regarding his history of psychosis, and claimed that, at the time of the murder, the symptoms of his mental illness were uncontrolled because he was not taking medication. At the conclusion of the trial, before instructing the jury, the trial court provided the state and the defendant with its proposed charge, and asked both parties to state any comments or objections for the record. The defendant did not take exception to any portion of the trial court's written charge. The trial court subsequently instructed the jury that in the defense of extreme emotional disturbance, " [t]he word 'extreme' refers to the greatest degree of intensity away from the normal state of the defendant." The defendant again failed to take exception to the charge as given by the trial court...

This court previously has concluded that the definition of extreme used by the trial court in this case is proper. In State v. Elliott, 177 Conn. 1, 10, 411 A.2d 3 (1979), this court specifically adopted the same definition: " In its charge, the trial court should explain that the term 'extreme' refers to the greatest degree of intensity away from the norm for that individual." See State v. Austin, supra, 244 Conn. at 243 n.18, 710 A.2d 732; see also State v. Ortiz, 217 Conn. 648, 654, 588 A.2d 127 (1991) (" the [extreme emotional disturbance] statute plainly requires [the jury's] determination to be made from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be" [internal quotation marks omitted]); State v. Steiger, 218 Conn. 349, 385, 590 A.2d 408 (1991) (" the determination of the reasonableness of the explanation or excuse for the emotional disturbance must be measured from the viewpoint of a reasonable person in the defendant's situation under the circumstances as the defendant believed them to be")...

The following undisputed additional facts and procedural history are relevant to our resolution of this claim. At trial, the state introduced eight large color photographs of the victim's body, both as it was found by the police at the crime scene and as it appeared during the autopsy in the medical examiner's office. The photographs were used by the state to explain the layout of the crime scene as well as to explore the extent of the victim's injuries. The trial court admitted the photographs as full exhibits after the defendant stated that he had no objection to their admission.

State v. Bowman, supra, 289 Conn. 811-19.

II

Law/Discussion

Standard of Proof

The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Burden of Proof

" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.

The Proceedings

" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony... it is the quintessential function of the factfinder to reject or accept certain evidence..." (citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).

Credibility

It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence... Credibility must be assessed... not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [factfinder]... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the factfinder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).

" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous... Historical facts constitute a recital of external events and the credibility of their narrators... Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony..." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations... This court does not retry the case or evaluate the credibility of witnesses... Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772, 117 Conn.App. 120, 126, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).

Habeas Corpus Matters-Generally

" The right to petition for a writ of babeas corpus is enshrined in both the United States Constitution and the Connecticut Constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence... The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness... The writ has been described as a unique and extraordinary legal remedy... It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted, internal quotation marks omitted.) Fine v. Comm'r of Corr., 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).

In his amended complaint dated December 16, 2015, the petitioner asserts:

1. Ineffective assistance of underlying counsel, Richard Silverstein, in that he:

a. Failed to move to suppress the petitioner's statements to police both before and after the petitioner was read his Miranda rights;

b. Failed to present evidence that smoking PCP laced with cocaine would leave the petitioner unable to knowingly and voluntarily waive his right to counsel and to remain silent;

c. Failed to pursue the defense of self-defense;

d. Failed to move for a mistrial after the petitioner lost consciousness in front of the jury during the trial;

e. Failed to poll the jury post-verdict; and

f. Failed to " appreciate that evidence of intoxication more appropriately serves to negate the element of intent in the crime of murder."

The respondent, in a return dated March 3, 2016, leaves the petitioner to his proof.

The Court heard the trial of this matter on May 25, 2016. The petitioner presented as witnesses Attorney Silverstein, New Haven Police Department Detective (retired) Reginald Sutton, Edna Bowman (the petitioner's mother), Alfred Bowman (the petitioner's brother), Leon Bowman (the petitioner's brother), the petitioner, and forensic psychiatry expert Paul Amble. Both parties submitted exhibits into evidence. At the request of the respondent, the Court ordered the simultaneous filing of post-trial briefs.

A

Ineffective Assistance of Counsel

" A criminal defendant's right to the effective assistance of counsel... is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. at 694.

" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed... by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. at 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance..." Strickland v. Washington, supra, 466 U.S. at 689. The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted; internal quotation marks omitted.) Id., 689. Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. at 686.

" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong" [internal quotation marks omitted]).

" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment..." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).

1

Failure to Move to Suppress the Petitioner's Statements

Attorney Richard Silverstein testified at the habeas trial to his representation of the petitioner during the underlying criminal litigation. He testified that he was retained by the petitioner's family. He testified that the defense strategy was mitigation through the affirmative defense of Extreme Emotional Disturbance (hereinafter " EED") and intoxication. In support of the defense, counsel hired a psychiatrist to evaluate the petitioner and opine to the jury as to the petitioner's mental state at the time of the offense.

Counsel testified that a decision to file a motion to suppress a client's statements " depends on the circumstances" of the case. Counsel then recounted correctly his understanding of how the petitioner and his crimes came to the attention of law enforcement. The petitioner did not challenge Silverstein's recollection of the manner in which the petitioner came to be in the company of law enforcement. Counsel testified that, while he did not hire an investigator, he met with the petitioner in prison and interviewed the petitioner's mother and two brothers in preparation for trial. In the instant matter, Attorney Silverstein testified that he could not recall whether he filed a motion to suppress the petitioner's statements to police in the underlying matter, describing the pre- Miranda statements to police as a " conversation" between the petitioner and the police officer summoned by the petitioner's family.

Regarding whether the decision not to file a motion to suppress the petitioner's statements to law enforcement was strategic in nature, that inquiry was not made by counsel for the petitioner at the habeas trial. Instead, the petitioner, in his post-trial brief, concludes, without credible evidence, that counsel was deficient in not filing such a motion. In his post-trial brief, counsel for the petitioner writes: " During the habeas trial, Detective Sutton testified that the petitioner was not free to leave [during the car ride with police], and in fact when they dropped off the petitioner's cousin, after finding the deceased body, the [p]etitioner attempted to exit the detective's vehicle, but was not allowed to do so, and was transported to the police station." Simply stated: Detective Sutton gave no such testimony at the habeas trial. To the contrary, Sutton testified credibly (despite certain instances of an inability to recall) that neither the petitioner nor the other civilian passenger was handcuffed during the drive. He further testified credibly that he felt comfortable turning his back on the un-cuffed passengers as he felt " no hostility" [between the occupants] in the vehicle as he recalled that the petitioner and the other passenger had some pre-existing relationship with Detective Willoughby (a relative), the lead detective and operator of the motor vehicle. There is insufficient credible evidence to establish that the petitioner was " in custody" for suppression purposes, when he lead law enforcement to the crime scene and made pre-arrest statements. The only habeas trial testimony in this regard was the largely unconvincing, self-serving testimony of the petitioner, which this court will address later in this opinion.

Additionally, as noted in the trial transcript, underlying counsel appears to have made the strategic decision to have portions of the petitioner's statements entered into evidence in an attempt to establish the EED affirmative defense relating to the exacerbation of the petitioner's emotional state and mental health issues caused by the ingestion of PCP and other substances. The petitioner has failed to overcome the presumption that this was a reasonable trial strategy.

On the basis of the lack of evidence adduced concerning the decision-making process surrounding a motion to suppress, this court finds that the petitioner has failed to overcome the presumption of competence in underlying counsel's representation of the petitioner. " [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment..." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).

Notwithstanding the aforementioned presumption, the petitioner has failed to adduce sufficient credible evidence to compel this court to find that the decision not to file a motion to suppress was objectively unreasonable. The credible evidence in the record, including the underlying trial transcript, is insufficient to establish that any motion to suppress petitioner's statements, pre-or-post arrest, had a reasonable probability of success. Accordingly, this claim fails based on a lack of establishing both deficient performance and prejudice. The court addresses the voluntariness of those statements in the next section of this opinion.

2

Failure to Present Evidence of Involuntary Waiver

Failure to Pursue the Defense of Self-Defense

Failure to Appreciate Evidence of Intoxication to Negate Intent for Murder

Dovetailing with the first claim is the assertion that counsel did not properly rely on the petitioner's having used PCP to show a lack of voluntariness in taking the inculpatory action of leading the police to the crime scene and making inculpatory statements regarding the murder. For many of the same reasons as the first, this claim fails.

First, as it relates to the question of the petitioner's voluntary intoxication at the time of the offense and his ability to manifest the intent necessary to satisfy the murder statute, this court finds the testimony of the petitioner's expert witness, Dr. Amble, most helpful.

After preliminary testimony sufficient to establish Dr. Amble's bona fides for qualification as an expert in forensic psychiatry, he testified credibly and convincingly to his general understanding of the effect of phencyclidine (" PCP") on the human mind. The doctor refrained from rendering an opinion to a reasonable degree of medical certainty as to the petitioner's ability to voluntarily waive his rights and/or manifest the intent to commit murder at the time of the offense, noting correctly that he didn't have " a lot to go on...", only the petitioner's report of the offense, as the " other person is dead."

Dr. Amble testified that generally, PCP can cause a level of disinhibition, disconnection from reality, and schizophrenic-like hallucinations, paranoia and delusions. He further testified that, although PCP use can result in aggression and violence, its impairment of the user's decision-making capacity " rarely" causes episodes of violence. He also testified when asked that, although the rare episodes of violence to others associated with PCP use can be more brutal, violence sufficient to kill someone is " not a typical effect" of using PCP.

The doctor testified that, based on the myriad factors that can affect the impact of PCP on a particular user (size, neurology, psychiatric illness) it is " really hard to predict the specific response [of an individual user]."

Regarding his interview and evaluation of the petitioner, Dr. Amble testified that his principal interest in the interview was the petitioner's mental state immediately before, during, and after his " attack" on the victim. On cross examination, the witness testified that someone under the influence of PCP can still take " intentional actions" and that, in the instant matter, it appeared to him that petitioner's actions [of hiding the victim's body and burning his car to destroy evidence] were " more consistent with someone trying to cover up the offense." Rather than being an effect of the drug, the expert testified credibly that the petitioner's covering up the murder was the petitioner " consciously deciding" he was " in trouble and looking to get out of it."

Curiously to this court, Dr. Amble testified that the petitioner reported hearing a voice telling him that the victim was going to harm him and that he should protect himself by harming her first. This report is curious as the petitioner failed to include this in his own testimony at the underlying trial. The doctor testified that this " new" auditory hallucination, as this court characterizes it, did not appear in any of the materials provided to him prior to his habeas trial testimony. The doctor testified that he is " not convinced" that the petitioner had an auditory hallucination prior to the killing. The court finds this to be but one several glaring examples of the self-serving nature of both the petitioner's testimony and his reports to Dr. Amble. The petitioner's own expert, at the habeas trial, largely agreed with this court's assessment of the credibility of his patient.

The doctor opined that he interpreted signs of " malingering" on the part of the petitioner in the materials provided to him prior to his testimony, including " a number of different scenarios" given by the petitioner that are " self-serving and not consistent with the facts." He further testified that the petitioner's reports to him of his version of the offense and auditory hallucinations " start out sounding plausible, " then start to sound more " self-serving than a typical auditory hallucination." The witness, as did this court during the instant trial, had " concern" that the petitioner was not telling him the truth during the evaluative process.

Second, as it relates to the petitioner's voluntary incriminating actions and statements to law enforcement, the court notes that the petitioner has failed to adduce convincing evidence, including from his expert witness, that any drug-induced impaired decision-making capacity played a role in his initial conversations with law enforcement or his post-arrest admissions. Dr. Amble's testimony regarding any exacerbation of preexisting psychiatric or psychological disorders concerning the petitioner's mental status surrounding the murder and its aftermath never developed beyond the realm of conjecture and generalities. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).

To the extent underlying counsel presented EED/intoxication evidence to the jury, this court does not find that he failed to " appreciate" anything related to the proper evaluation, assessment and presentation of such evidence. Underlying counsel presented the evidence available to him, with the assistance of an expert witness, for the jury's consideration. The jury stated, in rendering its verdict, that it had considered but found not proven the affirmative defense. (Exh. 12.) Based on the strength of the state's case, the court does not find the jury's failure to be convinced by the EED/intoxication evidence to be due to any deficient performance of underlying counsel.

" It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).

Regarding the petitioner's assertion that underlying counsel's failure to argue the petitioner's voluntary intoxication negated the specific intent to commit murder was deficient performance, this court, based on the entire record, including the criminal trial transcript, concurs with the assessment of underlying counsel that such an attempt " was not going to fly" and that he " can't believe it was going to be successful."

" The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). The term " effective" is defined by an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. at 668.

Based on the whole record, this court finds the petitioner has failed to adduce sufficient evidence to challenge underlying counsel's strategic decision not to present such an argument to the jury. " A reviewing court must look at the totality of the circumstances, understanding that effectiveness is not perfection." Jeffrey v. Commissioner of Correction, 36 Conn.App. 216, 219, 650 A.2d 602 (1994).

Finally, concerning a theory of self-defense, the court credits the assessment of underlying counsel that self-defense was " never a part of this case." Moreover, there is no credible evidence in the record to suggest the reasonable probability that a theory of self-defense, based on the petitioner's bare assertion that the victim attacked him with a knife, was a viable defense strategy.

For the reasons previously stated, the petitioner's assertions in this area are disregarded by this court as patently false. The court finds the petitioner's habeas trial testimony in support of his self-defense claim to be a recent fabrication based, inter alia, on the complete and total absence of any prior claims of self-defense from the petitioner, including his testimony at the underlying trial. This court finds the absence of such evidence to be evidence of its absence from what actually occurred at the time of the murder. In sum, there is no credible evidence in the record to support a finding of a reasonable probability that the petitioner's statements to law enforcement were other than voluntary, that he was unable to manifest the necessary intent for the crimes of which he stands convicted, or for a theory of self-defense.

3

Failure to Move for a Mistrial

In his post-trial brief, the petitioner fails to analyze or argue this claim, other than to mention that it occurred and that counsel did not move for mistrial or adjournment. As such this court deems the claim abandoned. " The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

To the extent this court considers the merits of this claim, the petitioner has failed to establish the basis upon which counsel should have moved for a mistrial. Assuming, arguendo, that the petitioner lost consciousness in the presence of the jury, that occurrence, without much more, falls far short of establishing a basis for this court to question the reliability of the underlying verdict. During his habeas trial testimony underlying counsel could not recall the petitioner passing out during the proceedings.

" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006).

Here, based on the lack of any evidence tending to show a reasonable probability that the petitioner's passing out in the presence of the jury affected the fairness of his trial, the petitioner has failed to establish prejudice.

4

Failure to Poll the Jury

Similar to the previous claim, the petitioner has failed to establish a reasonable probability of what, if any, prejudice the petitioner suffered as a result of counsel not polling the jury. The trial transcript clearly establishes that the trial court and the court clerk inquired as to the unanimity of the verdict, first as to all counts and then as to each count, with the jury responding collectively in the affirmative. (Exh. 12.)

In his post-trial brief, the petitioner, as best this court can discern, appears to aver two arguments related to this claim: First, that the failure of counsel to inform the petitioner of his right to have the jury polled is structural error requiring the presumption of prejudice; and Second, that the potentiality that an individual juror may have " balked" during polling requires this court to grant the petition. This claim fails in either circumstance.

Structural Error

" In considering the nature of a claimed constitutional violation, although typically such violations are reviewed for harmless error, there is a limited class of violations that we review for structural error. Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected... These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself... Such errors infect the entire trial process... and necessarily render a trial fundamentally unfair... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment may be regarded as fundamentally fair." (Internal quotation marks omitted.) State v. Dalton, 100 Conn.App. 227, 230 n.3, 917 A.2d 613, cert. denied, 282 Conn. 913, 924 A.2d 139 (2007).

To the extent the court has accurately assessed this argument and assuming, without finding, that the petitioner was not made aware by counsel of his right to poll the jury, this court declines to elevate this occurrence to the status of a constitutional violation. There is nothing to suggest that a lack of jury polling deprived the petitioner of basic protections rendering his trial fundamentally unfair. This being the case, as the jury collectively responded in the affirmative to the unanimity of their verdict, it would be more than speculation to assume that one of the jurors might have " balked" at the verdict when individually polled. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).

The Petitioner's Testimony

The petitioner testified at the habeas trial. This court found the petitioner to be wholly without credibility, and, as previously stated, his testimony to be a self-serving, convenient, loose, equivocal and internally inconsistent recent fabrication.

First, the petitioner, on direct examination, expanded his drug use from nine " joints" a day to fifteen. Then, the petitioner unconvincingly attempted to establish his self-defense claim ten years later by casting the victim in the role of the jilted lover when he testified that she " pulled out a knife" when the petitioner did not agree to move into her home. He then testified, clearly enough, that as the victim " attacked" him, he tried to block the knife, cutting his stomach and hands in the process. His memory then fades, conveniently, as he next testified that he " somehow" got the knife from the victim and " possibly harmed her" with it. He then clearly recalled the remainder of his attempts to conceal his crime and return to his home. Further, the petitioner clearly recalled and related his version of his contacts with his family and police. Despite his being able to clearly recall the foregoing, the petitioner volunteered during his habeas trial testimony that he was still feeling the effects of the drugs he took when dealing with the police.

When confronted on cross examination with inconsistencies between his underlying criminal trial testimony and his habeas trial testimony, the petitioner offered the blanket explanation that " most" of his trial testimony was inaccurate due to his being under the influence of prescribed medication during the trial, but that he is now prescribed different medication (presumably so that this court can now credit his present testimony and resolve all prejudicial inconsistencies in his favor).

Regarding his underlying trial testimony specifically denying that the victim had provoked him in any manner prior to the murder, the petitioner explained alternately: 1) That he was in a " medical state" at trial; 2) That " they" didn't really want him to testify to what " really happened"; and 3) That his underlying trial testimony could not be described as false as he " couldn't really remember" what had happened when he testified at the underlying trial.

Additionally, this court does not credit the petitioner's testimony that he told underlying counsel he acted in self-defense. The credible evidence in the record, including the testimony of Attorney Silverstein, contradicts this assertion.

Finally, the petitioner testified for the first time in any proceeding of which this court is aware that he was told he was not free to leave when in the police cruiser and that the police specifically prevented him from getting out of the cruiser when he attempted to do so. Again, this court finds this new " evidence" to lack credibility when compared to what the petitioner had testified to in the past and compared to the other, more credible, evidence in the record.

III

Conclusion

For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.

Hon. Vernon D. Oliver