Opinion
CV124004963S
02-11-2016
Gregg Madigosky (Inmate 314584) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Susan Quinn Cobb, J.
The petitioner, Gregg Madigosky, brings this petition for a writ of habeas corpus claiming that his criminal defense counsel was ineffective. He seeks an order of this court vacating his conviction and sentence, thereby restoring his criminal case to the trial docket for further proceedings. The court finds the issues for the respondent, and, therefore, denies the petition.
The petitioner was convicted after a jury trial of murder in violation of General Statutes § 53a-54a. The trial court sentenced the petitioner to a total effective sentence of fifty years' incarceration.
The petitioner appealed his conviction to the Supreme Court, which affirmed it. State v. Madigosky, 291 Conn. 28, 966 A.2d 730 (2009). In its decision, the Supreme Court found that the jury could reasonably have found the following facts:
The defendant and Lynn Bossert, the victim, began living together in 1993. During their relationship, he was gainfully employed as a draftsman for Sikorsky Aircraft Corporation. As their relationship continued, the defendant grew suspicious about the victim's fidelity, and when she became pregnant, he questioned whether he was the father of the baby. In March 2003, the victim gave birth to a girl, two months premature. The victim and the defendant later hired a nanny, Delores Sowa, to care for the baby while both parents worked.
On September 11, 2003, the defendant arrived home from work at approximately 5:50 p.m., took over the care of the baby and received the daily report from Sowa before she left. When the victim arrived home, she and the defendant, along with the baby, went to a previously scheduled counseling session with a family and marriage therapist, Julie M. Sowell, whom the couple had been seeing for the previous five months. The counseling session ended at 7:45 p.m.
Sometime after 9 p.m. that evening, the defendant and the victim had an altercation in their home, during which the defendant pushed the victim and then strangled her to death. In strangling the victim, the defendant used both of his hands and a dog leash. The strangulation caused extensive petechial hemorrhaging and edema, which indicated that force had been applied to the victim's neck for a prolonged length of time. The defendant stopped applying pressure to the victim's neck only after she had ceased struggling. He then ripped a locket from the victim's neck and left her body lying on the floor in a pool of blood. Sometime thereafter, the defendant wrote what appeared to be a suicide note to his friends and family.
At about 7:05 a.m. the following morning, the defendant telephoned Sowa, who was due to arrive shortly before 7:30 a.m., and told her not to come to the house because he was staying home from work that day. Sowa asked to speak with the victim, but the defendant said that she was in the shower. The defendant then put the baby in his car and drove to his parents' home. As soon as he arrived, he realized that he had forgotten the baby's diaper bag and returned to his house. There, he packed up the baby's things, including diapers, wipes, bottles and formula, and returned to his parents' home. The defendant's father met him in the driveway, where the defendant told his father that he and the victim had had a fight, that he had pushed her and that " she might be dead." When the two entered the house with the baby, the defendant's father awakened his wife and told her that the defendant had said that " [the victim] might be dead." The defendant went into the bathroom and began sobbing. The defendant's father left his house to check on the victim. After discovering the victim lying dead on the floor surrounded by blood, he telephoned the police.
While the defendant waited at his parents' home with his mother, the police surrounded the home. Major Peter Warren of the state police telephoned the house and asked to speak with the defendant. The defendant fully understood and complied with Warren's instructions to come out of the front door of the house slowly. Once outside, the defendant followed additional instructions that he was given, and he was arrested without further incident.
Following his arrest, the defendant was brought to the police station where he gave a statement to state police Detectives Richard Covello and Brian Van Ness. During the interview, the defendant made several incriminating and remorseful statements. He stated that he did not deserve help because of what he had done to the victim. Then, slumped over with his head down, he began crying. Later, in response to a question regarding what in his past he regretted most, the defendant said, " taking [the victim's] life." The defendant admitted to killing the victim, and forensic examination of the victim's fingernail clippings revealed skin scrapings consistent with the defendant's DNA.
At trial, the defendant presented two affirmative defenses: that he suffered from a mental disease or defect and that he suffered from an extreme emotional disturbance. In support of those defenses, he offered the testimony of Marvin Zelman, a board certified psychiatrist. Zelman testified that, on February 24, 2003, the defendant went to the police complaining of depression and paranoia. The police brought the defendant to Waterbury Hospital for an emergency psychiatric examination, which resulted in the defendant's inpatient treatment for nine days and subsequent outpatient treatment. According to the hospital records, the defendant reported that, although he had been prescribed psychiatric medications for mental illness, he had not been taking those medications for the past year. The hospital diagnosed the defendant as having major depression, recurrent, with psychosis. While at the hospital, the defendant initially was prescribed Haldol, an antipsychotic medication, but later was prescribed Risperdal, another anti-psychotic medication effective in the treatment of both schizophrenia and bipolar disorder, and Remeron, an antidepressant. The defendant was discharged from the hospital on March 4, 2003, despite his physician's conclusion that he was, at the time of discharge, a danger to himself and to others. Although he was supposed to remain on his psychiatric medications, in the weeks after his discharge, the defendant gradually reduced and then discontinued taking his medications. In the days before the victim was killed, the defendant suffered from paranoid delusions, believing, in part, that he was being investigated at work for the crash of a helicopter designed by the company. The defendant told Zelman that he had killed the victim because he was angry at her for cheating on him with her former husband or one of his coworkers. Zelman testified that, in his opinion, on the date of the killing, the defendant was " psychotic, and [that] the nature of his illness is schizoaffective disorder, depressive type." In his opinion, the strangulation was a product or byproduct of the defendant's mental illness. Zelman explained: " [The defendant] was severely disturbed. He was psychotic, out of touch with reality, incapable of making judgments, reasonable judgments, and mentally ill at the time and this is how he responded to a provocation." In Zelman's opinion, the events between the time the defendant was discharged from the hospital and the night on which the victim was killed represented a " psychiatric perfect storm . . . You have one of the sickest people combined with the worst treatment and that's what really happened . . . All he needed was a stressor and multiple stressors occurred." Zelman underscored that, in his view, the defendant was unable to control his conduct.(Footnotes renumbered.) State v. Madigosky, supra, 291 Conn. 30-33.
" The defendant's handwritten note, which subsequently was found in his right front pants pocket, provided: 'Lynn, I loved you so much. But did not know what was going to happen to me. I did not know if you [were] with someone else or not, and that [our child] was even ours. Jobber Paul, Mario, Ken, or Mike. I am sorry for everyone at work, I did not mean to hurt anyone. Julie, thank you for your help. Mom and Dad I love you. Anthony be good. Frank and Rick thanks for mechanic school.'"
" The stressors that Zelman cited included: the premature birth of the defendant's child; the death of the victim's mother the same day the victim brought the baby home from the hospital; the defendant's emergency hospital admission; and the disruption to his routine with the concurrent hiring of a nanny and the victim's return to work."
The petitioner brought this habeas action on October 3, 2012. The second amended petition, dated July 9, 2013, claims that his trial defense counsel, Attorney Ralph Crozier, was ineffective in failing to prepare the expert to distinguish between cognitive and volitional insanity under General Statutes § 53a-13(a), and failing to effectively present the issue of cognitive insanity in his presentation of evidence. General Statutes § 53a-13(a), entitled " lack of capacity due to mental disease or defect as affirmative defense, " provides: " In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of the mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct with the requirements of the law." The statute contains both a " cognitive" and a " volitional" prong. State v. Wilson, 242 Conn. 605, 613, 700 A.2d 633 (1997). " Under the cognitive prong . . . a person is considered legally insane if, as a result of mental disease or defect, he lacks substantial capacity . . . to appreciate the [wrongfulness] of his conduct . . . Under the volitional prong . . . a person also would be considered legally insane if he lacks substantial capacity . . . to conform his conduct to the requirements of law." State v. Madigosky, supra, 291 Conn. 39.
The habeas trial was held on June 17, 2015. The petitioner presented testimony from Dr. Marvin Zelman, who was the petitioner's expert at the criminal trial, and Attorney Ralph Crozier, his trial counsel. The petitioner submitted exhibits and both parties filed post-trial briefs.
Attorney Crozier testified via telephone from the federal penitentiary at Fort Dix, New Jersey, where he is serving a thirty-month sentence for a federal money laundering and attempted money laundering convictions.
The court finds the following additional facts.
Attorney Crozier represented the petitioner throughout the criminal proceedings on the murder charge. Attorney Crozier is an experienced attorney, who practiced law for nearly thirty years before representing the petitioner in his criminal trial. Beginning in 1980, Attorney Crozier represented criminal defendants, including eighty-six homicide cases. Of those eighty-six cases, Attorney Crozier estimated that twenty-five cases proceeded to trial, and that three of those cases asserted a defense of mental disease or defect.
After investigating the petitioner's case, Attorney Crozier decided to pursue a defense that the petitioner should be found not guilty by reason of mental disease or defect, or in the alternative that the petitioner committed the offense because of extreme emotional disturbance.
Attorney Crozier retained Dr. Zelman to conduct a psychiatric evaluation of the petitioner. Dr. Zelman did so and concluded that the petitioner suffered from psychotic episodes triggered by several stressors such as: feeling personally responsible for a helicopter design flaw that resulted in a crash; the premature birth of his daughter; concern that the victim was cheating on him with one or more of his coworkers; the death of the victim's mother; and individuals conspiring against him. Dr. Zelman concluded that the petitioner was insane at the time he committed the offense. Attorney Crozier relied upon Dr. Zelman's finding and opinions in preparing his defense to this case on the petitioner's behalf.
The testimony was somewhat contradictory as to whether Attorney Crozier specifically reviewed the two theories of insanity defense under the statute, cognitive and volitional, with Dr. Zelman. Attorney Crozier testified credibly that he believed that he did in fact review the two prongs of the statute with Dr. Zelman. Whether Attorney Crozier actually reviewed the statute with Dr. Zelman or not, the court finds that Dr. Zelman is an experienced expert, had testified previously on the subject of insanity and knew and understood the law in Connecticut as to the insanity defense including the two prongs of the statute.
Based on his investigation and the conclusions of Dr. Zelman, Attorney Crozier concluded that the evidence best supported the volitional prong. Notwithstanding this conclusion, Attorney Crozier did present some evidence on the cognitive prong.
At the criminal trial, Attorney Crozier presented the testimony of Dr. Zelman in support of the petitioner's affirmative defenses of mental disease or defect and extreme emotional disturbance. Dr. Zelman testified that he evaluated the petitioner and concluded that at the time of the murder of his wife the petitioner suffered from a severe mental illness, specifically, schizoaffective disorder, depressive type. Although Dr. Zelman's testimony was presented in support of mental disease or defect, which can be proven by one or both of the prongs, his testimony almost exclusively addressed the volitional prong. Nevertheless, Attorney Crozier questioned Dr. Zelman on direct examination at trial about the petitioner's state of mind at the time he killed the victim, and Dr. Zelman opined that the petitioner lacked recognition that he did anything wrong.
Attorney Crozier also argued in his closing arguments to the jury that the petitioner had satisfied both the cognitive and volitional prongs of the statute.
In addition, the trial court instructed the jury on the elements of the defense of mental disease or defect and in its instructions no less than three times mentioned both prongs of that defense. The trial court further instructed the jury that the petitioner did not need to prove both prongs and that it was sufficient if he proved one prong. Lastly, the trial court gave detailed instructions of the legal standards for each of the prongs.
Dr. Zelman testified at the habeas trial. His testimony was not significantly different than his trial testimony as to his diagnosis of the petitioner. Importantly, Dr. Zelman did not provide any additional testimony as to the cognitive prong of the statute, or more particularly, how his testimony would have been different at trial had Attorney Crozier reviewed the cognitive prong of the statute with him prior to his criminal trial testimony.
DISCUSSION
A. Standard For Claims of 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).
To establish a claim of ineffective assistance of trial counsel, 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." (Internal quotation marks omitted; 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. 688, 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 Sixth Amendment.'" 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. 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 the result of which 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. 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.) Id., 689.
" In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. [ Strickland v. Washington, supra, 466 U.S. 695-96.] [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id., 696. The 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. Id., 686." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 689, 51 A.3d 948 (2012).
" [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." Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989), citing and quoting Strickland v. Washington, supra, 466 U.S. 697; King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003) (" Because 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").
B. Ineffective Assistance of Counsel Claim
The petitioner alleges that Attorney Crozier was ineffective because he failed to prepare Dr. Zelman to testify at the criminal trial as to the difference between the cognitive and volitional insanity and for not effectively presenting the issue of cognitive insanity in his presentation of evidence. The court rejects these claims.
The court concludes that Attorney Crozier reviewed both prongs of the statute regarding the insanity defense with Dr. Zelman and even if he did not, Dr. Zelman, an expert in this area, was fully aware of the distinction. Attorney Crozier focused the petitioner's defense efforts primarily on the volitional prong of the statute because his investigation and Dr. Zelman's conclusions better supported the volitional prong. Attorney Crozier's focus on the volitional prong was reasonable, especially given Dr. Zelman's report and its emphasis on the volitional part of the defense of mental disease or defect. " A trial attorney is entitled to rely reasonably on the opinion of an expert witness, . . . and is not required to continue searching for a different expert." (Internal citation omitted.) Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 816, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). This decision by Attorney Crozier is precisely the type of tactical decision made in the course of a sound trial strategy that is presumed to be reasonable unless affirmatively proven otherwise. Johnson v. Commissioner of Correction, 285 Conn. 556, 583-84, 941 A.2d 248 (2008) (" In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence"); Edwards v. Commissioner of Correction, 87 Conn.App. 517, 525-26, 865 A.2d 1231 (2005); Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692.
In addition, the petitioner has failed to prove prejudice. Even if Attorney Crozier did not specifically review the statute with Dr. Zelman, both insanity defense theories were presented, raised in closing argument and the court's charge.
Moreover, the petitioner presented no evidence at the habeas trial to prove that had Attorney Crozier reviewed the cognitive theory with Dr. Zelman more thoroughly, Dr. Zelman's trial testimony would have been any different or that the outcome of the trial would have been different. Dr. Zelman testified at the habeas trial, and although he said that Attorney Crozier did not specifically review the statute with him, he did not say that he did not understand the cognitive theory, believed that it applied to the facts of the petitioner's case, or that had he been aware of it, his opinions in this case would have been different. Thus, there is no evidence that affirmatively proves that the petitioner was prejudiced. Strickland v. Washington, supra, 466 U.S. 693 (two-prong test for ineffective assistance of counsel requires affirmative proof of prejudice). See, e.g., Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001) (failure to show required prejudice when petitioner offered no evidence regarding the nature of the testimony that an expert would have produced if one had been called at the suppression hearing); Foreshaw v. Commissioner of Correction, 48 Conn.App. 122, 130, 708 A.2d 600, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998) (affirming habeas court's conclusion petitioner failed to prove claim when experts testified as to self-defense, but presented no testimony on duty to retreat).
The petitioner has not, therefore, presented any evidence that could undermine this court's confidence in the outcome of the criminal trial, nor that he was deprived of a fair trial, the result of which is not reliable.
Based upon all the foregoing, the court concludes that the petitioner has failed to show that Attorney Crozier rendered deficient performance and the necessary prejudice. The petitioner's claims, therefore, must be denied.
CONCLUSION
Having found the issues for the respondent, judgment shall enter denying the petition for a writ of habeas corpus.
So ordered.