Opinion
No. CV 02-0461619 S
March 9, 2007
MEMORANDUM OF DECISION ON PETITION FOR HABEAS RELIEF
The petitioner has filed for habeas relief. After a trial by jury he was convicted of murder in violation of § 53a-54a and was sentenced to forty years. He appealed and the Supreme Court upheld his conviction as reported in 250 Conn. 385 (1999). The court held that the trial court properly admitted inculpatory statements he had given and found that the trial court had not deprived him of a fair trial by not allowing the jury to go home for the day after several jurors so requested, thus coercing them into rendering a verdict.
A.
In this petition the petitioner having abandoned certain prior claims, made the following claims for relief:
1. Trial Counsel failed to impeach the credibility of certain state's witnesses when testimony given on the motion to suppress was inconsistent with testimony given during the course of the trial.
2. Trial Counsel failed to move to strike, or in the alternative to request a limiting cautionary instruction to the jury regarding all testimony which violated the trial court's decision suppressing certain evidence and statements of the petitioner.
3. Trial Counsel failed to move for a mistrial when after the just mentioned oral decision suppressing the confession it became obvious that certain testimony, given during the course of the trial was in violation of portions of the trial court's suppression order.
4. Trial Counsel failed to raise an alternative affirmative defense of diminished capacity.
5. Trial Counsel Failed to pursue the affirmative defense of lack of capacity due to mental disease or defect pursuant to § 53a-13(a) of the general statutes.
B.
The court will set forth the facts as the Supreme Court found them at 250 Conn. pp. 387-89:
The defendant and the victim, Brian Altvater, had been close friends for twelve years, and both were twenty years old at the time of the victim's death. For the preceding two years, they had lived as roommates in the basement of the victim's parents' home. The two men often sought employment at the same jobs, and had talked of starting a computer company together. Until shortly before the victim's death, both worked as salesmen at an area car dealership.
On the night of November 15, 1994, the victim's mother discovered the body of her deceased son in his bedroom in the basement. The victim was found on his bed with the covers pulled up to his chin and his arms at his side, underneath the covers. The victim had suffered a gunshot wound to the back of the head. A .22 caliber semiautomatic pistol and its holster were found on the combination headboard/bookcase of the victim's bed. A shell casing was lodged in the ejector port of the gun, indicating that the gun had been fired. The victim's father contacted the police, and an officer immediately responded to the Altvater home. That officer subsequently was followed by members of the state police major crime squad.
The police conducted an initial investigation at the scene, and interviewed both of the victim's parents. Upon learning that the defendant shared a residence in the basement with the victim and likely would have been the last person to have seen the victim alive, a member of the state police located the defendant by telephone at his mother's house at 1 a.m. An interview was scheduled, and two detectives went to the defendant's mother's house and spoke with him for approximately one hour and fifteen minutes at 4:30 am. During that interview, the defendant provided a written statement concerning the events of the past day.
During the day on November 16, 1994, one of the detectives requested that the defendant come to the state police Troop A barracks for another interview, based on certain details in the defendant's statement, particularly a discrepancy between the defendant's time line of the events of the preceding morning and the time line given by the victim's father. At the conclusion of that interview, because the detectives believed that the defendant was withholding information about the victim's death, they asked the defendant if he would be willing to take a polygraph examination in order to support his statements. The defendant agreed to do so. An unexpected opening in the testing schedule at the state police polygraph unit enabled the defendant to be scheduled for a polygraph examination the next day. On November 17, 1994, the defendant again met the two detectives at the Troop A barracks. He was given the option of driving to the polygraph unit in his own car or with the detectives, and he elected to travel with the detectives. During the drive, the two officers and the defendant had a casual conversation about computers.
At the polygraph unit, the defendant underwent a preliminary interview with a secondary polygraph examiner, followed by the polygraph examination itself with the primary examiner. As a result of the defendant's performance on the polygraph examination, the two examiners believed that he had been deceptive in his statements that he knew nothing about the victim's death. During post examination questioning to determine the nature of the perceived deception, the defendant made the admissions at issue in this appeal, wherein he confessed to shooting and killing the victim. The defendant subsequently was charged with the murder of the victim.
The leading case in the area of the propriety of habeas relief is Strickland v. Washington, 466 U.S. 668 (1984). The court will make some general observations about Strickland in order to set its specific discussion of the claims made in this case in context.
A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the federal constitution at all critical stages of a criminal prosecution. In Duperry v. Solnit, 261 Conn. 309, 335 (2002), the court, relying on Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), said that:
. . . [T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for defense counsel's deficient representation, the result of the proceeding would have been different.
The court will discuss the first requirement of an ineffective assistance claim — did the representation fall below an objective standard of reasonableness. Then the court will discuss the second aspect — given ineffective assistance was there prejudice.
(1)
The Strickland court discussed in some detail the nature of the effective assistance counsel must provide. At pages 687-88 the court said perfection is not required, what is being talked about is reasonably effective assistance. Also an "objective standard of reasonableness" must be applied. Reasonableness is to be determined by examining all of the circumstances. At page 689 Strickland went on to say that: "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.'"
As our court has said, it is also true that: "The issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel." Gentry v. Warden, 167 Conn. 639, 647 (1975); State v. Ralls, 167 Conn. 408, 432 (1974). On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions: "This measure of deference . . . must not be watered down into a disguised form of acquiescence." Profitt v. Waldron, supra, 831 F.2d at page 1248.
(2)
The second prong of the standard used to determine if counsel was ineffective requires that the petitioner show that "there is a reasonable probability that but for defense counsel's deficient representation the result of the proceeding would have been different." Strickland at 466 U.S. page 688. Thus to show prejudice there must be a reasonable probability that because of counsel's deficient performance confidence in the outcome is undermined and also a reasonable probability that the jury would have had a reasonable doubt regarding guilt. Id., pages 694-95. See also Dupery v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1929).
(3)
In applying the tests set forth in Strickland — (1) deficient performance, and (2) whether the deficient performance prejudiced the defendant — the court made the following observation regarding these two inquiries:
. . . [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or event to address both components of the inquiry if the defendant makes an insufficient showing on one . . . The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
In State v. Salazar, 707 p. 2d 944 (Ariz. 1985), the court, following CT Page 9721 Strickland said that "we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was ineffective, we examine whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., pages 945, 946. The court went on to hold, id., page 947, that: "As the defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice, we need not reach the performance question." Also see People v. Kipp, 18 Cal.4th 349, 367, 956 p. 2d 1169 (1998); 21a Am.Jur.2d, "Criminal Law," § 1225, page 490.
D.
The court will now discuss the various claims made by the petitioner and will begin by referring to two interrelated claims.
(1)
The petitioner claims that defense counsel should have moved to strike testimony of a confession to state troopers which followed admissions to the polygraph examiners, asked for a cautionary instruction, or should have moved for a mistrial. The problem arises because when trial commenced the jury heard reference to the subsequent confession. But the trial judge's oral decision to suppress this confession was made after the trial had commenced and after references to the confession before the jury. At that point it is claimed a motion to strike the references to the confession should have been made or a motion for a mistrial at least a cautionary instruction should have been asked for.
When the court uses the word "confession" it is referring to a formal confession made to State Troopers chronologically after he had made certain "admissions" to police officers who had conducted the polygraph.
The problem with the petitioner's position is that the Supreme Court ruled in State v. Pinder, 250 Conn. 389-26, that the trial court did not err in allowing into evidence several incriminating oral statements given to the polygraph examiners. This was so despite the fact that the trial court did suppress a later confession to certain State Troopers.
Certainly under these circumstances counsel could have moved to strike references to the confession to the Troopers after the trial judge's oral decision but this would not be the basis for mistrial or support the petitioner's present Strickland claims. But the petitioner is not raising a claim that defense counsel violated his right to effective assistance of counsel for failure to pursue a defense of actual innocence. There is thus no claim in these proceedings that the petitioner was actually innocent of killing the victim. At trial only an affirmative defense of extreme emotional disturbance was made and here it is claimed that counsel "failed to raise an alternative affirmative defense of diminished capacity" and "failed to pursue an affirmative defense of lack of capacity due to mental disease or defect pursuant to" § 53a-13(a) of the general statutes. The petitioner coalesces these two separate claims in his petition when at page 5 of his brief he says the diminished capacity alternative defense claim "has been put forth in Count One paragraph 10G of the Petitioner's Second Amended Complaint dated June 30, 2006 and will be further and more fully addressed under section G below where the failure to pursue a "§ 53a-13(a) affirmative defense of lack of capacity due to mental disease or defect is discussed." Whatever the thrust or compatibility of these two separate claims are, the point is that the petitioner does not now take the posture of denying actually killing the victim qua physical act and makes no claim this defense should have been pursued at trial.
The claim now under discussion was not mentioned or characterized by the expert witness as related to the extreme emotional disturbance defense or a possible diminished capacity or insanity defense. The thrust of these latter defenses is an assumption that the defendant committed the homicide with which he was charged but is not guilty by reason of insanity or should be found guilty of a lesser degree or homicide due to extreme emotional disturbance.
Under these circumstances the court cannot find that, even if defense counsel's performance was deficient in failing to move to strike the testimony about the confession or request a limiting instruction or a mistrial, prejudice has been shown under Strickland's second prong. As noted to show prejudice the petitioner must establish that "but for" the deficient representation "the result of the proceeding would have been different," 466 U.S. page 688, and confidence in the outcome not only is undermined but there is a reasonable probability that the jury would have had a reasonable doubt about guilt, id., pp. 694-59, cf. Duprey v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1989).
There is simply no connection between the failure to object to this testimony about the suppressed confession and its presentation to the jury and the task the jury had in weighing the validity of the extreme emotional disturbance defense based on the judge's instruction and all the relevant evidence on this subject presented during the trial. Or to put it another way, the fact that the jury improperly heard more evidence of guilt as to the homicide by a confession subsequent to admissions to the same effect, would not have prejudiced the petitioner's claim that he was not guilty of the most serious consequence of the homicide — murder — because of extreme emotional disturbance.
(2)
The next claim the petitioner makes concerns the testimony of Detective Schraeder. At the suppression hearing outside the jury's presence Schraeder testified that he was the officer who administered the polygraph test. Pinder made admissions to him about killing the victim which were allowed into evidence before the jury. At the suppression hearing Schraeder said that after he told the test results indicated he was lying, Pinder's emotional state deteriorated. He became hysterical and cried uncontrollably; Pinder was incoherent and Schraeder had a hard time understanding what he was saying. Pinder rambled and talked in a way not responsive to any questions. Pinder cried most of the time, according to Schraeder.
Because Pinder's admissions but not his later confession were allowed into evidence a video of the Schraeder-Pinder interview was played for the jury and a transcript was produced. But prior to the jury's viewing the video, Schraeder testified at the trial. When testifying before the jury his testimony about Pinder's demeanor differed from that he had offered at the suppression hearing before the judge. At trial on direct Schraeder said Pinder was nervous but no more so then other people submitting to the test. Schraeder said he talked in a free flowing, non-hesitant manner. He was however, guarded, his fists were clinched. At the end of the interview Pinder was more relaxed.
On cross-examination Detective Schraeder said Pinder was not hysterical or upset, he was controlled, his crying was not legitimate but was a controlled effort. Schraeder referred to the video and repeated Pinder was not hysterical. The crying was artificial, there were no tears, he only really cried some of the time. Schraeder said there was no "legitimate emotion" — "it's common to see in people that are being deceptive." Schraeder's testimony when read closely indicated that it was during that portion of the interview where Pinder denied the homicide and tried to portray the death as a suicide that Pinder's emotional behavior was not legitimate and artificial as just described.
Schraeder went on to tell the jury that towards the end of the conversation when Pinder admitted to killing the victim his body language "seemed to indicate some truthfulness." His emotion at that point was "real."
After Schraeder's testimony, the video of the foregoing interview was played for the jury. A transcript of the video was made but the video itself was not introduced into evidence at the habeas hearing and is not part of the record made available to this court.
The petitioner argues in his brief that defense counsel "did not choose to impeach Detective Schraeder's (trial) testimony regarding the Petitioner's emotional state during the detective's interview, although it differed from his testimony at the suppression hearing.
The petitioner's brief sought to set forth the significance of this failure to impeach:
It left the jury with the impression that he was controlled and that even in the emotionally intimidating lie detector test interview that Petitioner was in control of his emotions. By not presenting Shaedler' prior testimony that was hysterical, Riccio missed an opportunity to hammer home to the jury the Petitioner's fragile hold on emotional control in overwhelming situations, and to dispel the notion Shaedler was furthering that any emotion displays revealed on the tape were contrived or "crocodile tears."
Defense counsel's response to this when he testified at the habeas hearing was that at the time of the cross-examination he knew, and in fact it turned out to be the case, that the jury was going to see the video tape of Pinder's interview with Schraeder. They could judge for themselves if Schraeder properly characterized Pinder's demeanor. As mentioned the tape was not part of the record, so this court could not examine it but there is no dispute that the tape would have contained everything on which Schraeder based his testimony and characterizations.
Apparently referring to the tape which was shown to the jury the State's Attorney in preliminary remarks to the judge and opposing counsel said "the tape consisted of approximately thirty minutes of the final portions of the interview." From reading the court's order it appears that the word "final" was used to mean portions of the tape referring directly to the administration of a polygraph exam were excised but the remainder of the interview was shown.
Also it should be noted that Detective Clark who interviewed Mr. Pinder and took the initial statement from the petitioner did not describe his reactions as "controlled" or "artificial" or the product of contrivance. He appeared somewhat upset to Clark and also agreed that he was emotional. Another detective who interviewed Mr. Pinder the day after the crime, Sgt. Hyatt, said the petitioner became emotional toward the end of the interview. Both officers said although he was upset he was cooperative. Thus, there was not a solid block of police testimony trying to portray the petitioner as a person who contrived his emotions and thus was incapable of meeting the description of his personality offered by Dr. Merikangas.
In any event it is difficult to make a finding of prejudice under the CT Page 9725 Strickland standard on this aspect of the petitioner's claim. True defense counsel could have impeached Schraeder's testimony by informing the jury of his characterization of the petition's demeanor while Schraeder was testifying in the suppression hearing but the best evidence of Pinder's demeanor during the Schraeder interview was the tape itself which would have revealed the actual demeanor he displayed.
Also the behavior that Schraeder described as artificial and forced occurred during that portion of the interview when Pinder was denying that killing the victim was his idea and insisting that the victim wanted to be shot by Pinder. At trial before the jury there was no explicit denial by the defense that Pinder intentionally shot the victim and that it was his own idea. The petitioner's dissembling and "crocodile tears" performance, if one is predisposed to even accept Schraeder's characterization, is more consistent with an unsuccessful attempt to cover up what even the defense conceded was an untruthful narrative of how the shooting took place rather than a reflection on Pinder's ability to deal with the type of stress that led to the shooting itself.
Also, even assuming Schraeder's characterization of Pinder's behavior during much of the interview is accurate a cursory reading of the transcript of the video reveals a person who, it could be said, is incapable of acting in a controlled, self-directed manner even though his behavior is otherwise overlaid with play acting and a display of false emotion. And, it should be said, his adopted facade did not succeed and he made the admissions which led to the murder charge. Thus the court as noted cannot find the necessary prejudice prong under Strickland has been met.
Finally the foregoing assumes the ineffective assistance prong under Strickland has even been met. Sergeant Schraeder was a 19 1/2 year veteran of the State Police with a firm belief that Pinder intentionally killed the victim by his own decision. At trial he seemed to want to dispel any notion that the petitioner's admission to him of this was anything else but an accurate representation — whence his characterization of Pinder's actions as forced and nothing more than "crocodile tears." But this had nothing to do with the validity or invalidity of the extreme emotional distress claim so why would defense counsel risk a bout of verbal jousting and impeachment forays with this experienced officer when as he said the jury was going to see the video in any event and the homicide was admitted.
The court concludes the petitioner has not established this claim under Strickland.
(3)
The court will finally discuss two claims raised by the petitioner that are in some respects interrelated.
(a) Trial counsel failed to raise an alternative defense of diminished capacity.
(b) Trial counsel failed to pursue the affirmative defense of lack of capacity due to mental disease or defect pursuant to § 53a-13(a) of the general statutes.
(a)
The petitioner advances the claim in support of his petition that the defense lawyer failed to raise the defense of diminished capacity. The commonly accepted definition of the diminished capacity defense is that it can be used to rebut intent where the crime charged requires intent. Section 53a-54a with which he was charged and of which he was convicted requires proof of intent. In relevant part it says that a person is guilty of murder "when, with the intent to cause the death of another person, he causes the death of such person."
In our state as in others, the diminished capacity defense is accepted and a defendant has the right to argue that his diminished capacity negated any specific intent on his part regarding the homicide. As stated in State v. Pagano, 21 Conn.App. 447, 449 (1990):
Evidence with regard to a defendant's mental capacity is relevant "in any case where a specific intent is an essential element of the crime involved . . ." State v. Hines, 187 Conn. 199, 204, 445 A.2d 314 (1982). "Such evidence is admitted not for the purpose of exempting a defendant from criminal responsibility, but as bearing upon the question of whether he possessed, at the time he committed the act, the necessary specific intent, the proof of which was required to obtain a conviction."
Id. Other cases recognizing this defense are State v. Gracewski, 61 Conn.App. 726, 736 (2001); State v. Auburn, 29 Conn.App. 174 (1992); State v. Folson, 10 Conn.App. 643, 651 (1987); State v. Thurman, CT Page 9727 10 Conn.App. 302, 322 (1987), see also older cases of State v. Burge, 195 Conn. 232 (1985), and State v. Donahue, 141 Conn. 656 (1955), also see generally 21 Am.Jur.2d 59, "Criminal Law" at § 38, page 151.
From the petitioner's brief it seems apparent that he is no longer advancing the diminished capacity defense to the intentional crime of murder § 53a-54a. His brief points to the fact that the defense expert, Dr. Merikangas, used the term "diminished capacity" only to describe the petitioner's inability to fully control his conduct in all situations. The brief goes on to say:
The expert's use of the term in this manner does not describe the state of the art definition of "diminished capacity" as it is used in the statute identifying "diminished capacity" as an affirmative defense. This manner in which Dr. Merikangas used this term in his testimony suggests that he recognized in the Petitioner a "lack of capacity" in certain situations to control his conduct within the requirements of the law. Accordingly, trial counsel, having read Merikangas's report prior to the trial, should have raised the alternative (but not mutually exclusive) "lack of substantial capacity" affirmative defense available under Section 53a-13.
Counsel is apparently referring to subsection (b) of the murder statute § 53a-54a which says:
(b) Evidence that the defendant suffered from a mental disease or defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with the intent to cause the death of another person."
In other words the petitioner was arguing that when his expert used the term "diminished capacity" he was suggesting the petitioner had a "lack of capacity to control his conduct within the requirements of the law." That is one of the criteria to establish an "insanity defense" under § 53a-13.
There is nothing in Dr. Merikangas's report or testimony to indicate that any of his testimony regarding his congenital brain deformity, skull fracture accident, or various life stressors had anything to do with his ability or lack thereof to specifically intend to commit murder.
In fact at the habeas hearing the Assistant State's Attorney asked the petitioner's expert, a criminal defense lawyer of many years experience:
Q . . . In your view of Dr. Merikangas's report and the testimony at trial of both experts was there any evidence that you saw that the petitioner lacked the cognitive ability to formulate the specific intent to commit murder?
A. No.
The court agrees. Either the claim of failing to advance a diminished capacity defense regarding intent is abandoned or if it is not, there is no basis in the record to conclude failure to advance it at trial or, for example, to request a jury instruction could constitute deficient performance under Strickland — that is so because there simply was no basis for such a defense.
(b)
The main thrust of the petitioner's claim in this case is his claim that the performance of trial counsel was deficient because he failed to pursue the defense of lack of capacity due to mental disease or defect pursuant to § 53a-13(a) of the general statutes. The petitioner offered the testimony of a very experienced lawyer who has handled many criminal cases, tried a number of cases, and has been involved in the appeals process. He reviewed the report of Dr. Merikangas which was introduced into evidence at the habeas hearing, the doctor's trial testimony, and the report of Dr. Grove, the state's expert. The only affirmative defense pursued at trial and presented through Dr Merikangas's testimony was the defense of "extreme emotional disturbance" under subsection (c) of § 53a-54a(a). The petitioner's expert questioned, after reviewing Dr. Merikangas's trial testimony, why a § 53a-13(a) defense was not presented. At one point he said that from his trial testimony alone "there was evidence sufficient to believe that there may have been a (defense of) mental disease or defect available to counsel at the time of trial and I (the habeas petitioner's expert) relied primarily on his (Merikangas's) testimony."
At another point after being asked whether parts of the doctor's testimony "Supported meeting the criteria under the statute, the petitioner's expert seemed to qualify the foregoing opinion by answering in the following way:
A. I can't testify as a medical expert. I can only say that that was something I would have investigated to see whether the doctor's testimony
At another point the petitioner's expert was asked whether he could ascertain any tactical reason why defense counsel used the defense of extreme emotional disturbance and "not request or give notice that he was using the mental disease or defect defense?" The attorney expert answered:
A. No. It wasn't apparent to me. I wondered what Dr. Merikangas's testimony meant about what the relationship was between the neurological and congenital issues and the behavior.
These very candid responses underline the difficulty the court has with the unqualified claim that defense counsel's performance was deficient because of a failure to advance a § 53a-13(a) defense. There was much testimony from Merikangas to the petitioner's congenital brain deformity and skull fracture and the effect this would have on his ability to control his actions along with testimony in this regard about the overlay of the historically stressful factors in the petitioner's life and with his dependent relationship with the victim. There was also testimony of a disassociative state the petitioner was suffering from immediately before the homicide and its effect on the ability to control his actions. The doctor's report in this regard said the petitioner's "actions were the consequence of extreme emotional disturbance in a person whose damaged brain reduced his ability to control his actions" — "reduced" not destroyed.
His testimony at several points suggested that because of his brain deformity, the accident causing a skull fracture, his family history, and stressful relationship with the victim and disassociative state he could not control his conduct which resulted in the homicide. But at other points he suggested a person with his problems has "less ability to control his emotions" and is "more prone to blow up violently." At another point the doctor said because of the petitioner's background he acted as if he was in a dream, as an observer and "he was not able to be in full control of his faculties at that time." Also it is not clear whether complete lack of control is deduced from all this or only difficulty in controlling conduct, how much of this lack of control factor is due to brain deformity, skull fracture on the one hand and family history and stressful relationship with the victim on the other.
In light of the foregoing the court finds basis problems with the petitioner's position on this claim under Strickland. No expert testimony was offered at the habeas proceeding. As the petitioner's legal expert conceded in this hearing he is not a medical expert but neither is the court. Nor can the court be asked to fill that role. True it has been said that, for example, the state is not required to produce expert testimony to sustain a conviction where the defense of insanity is raised," State v. Cole, 50 Conn.App. 312, 329 (1998); where the defense presents experts to show insanity the state need not call its own experts but can rely on cross-examination of the defense experts to defeat the claim, State v. DeJesus, 236 Conn. 189 Conn. 201 (1996). But this does not mean that in a habeas proceeding the habeas court, in a case where the defense medical expert was only offered at trial to show extreme emotional distress the habeas court can conclude it was prejudicial error not to raise a § 53a-13(a) insanity defense by merely examining the defense expert's testimony at trial given the relatively complicated nature of that testimony and an earlier report of the testifying defense psychiatric expert.
Furthermore using a deficient performance analysis, without expert testimony in this case it cannot be found that there was deficient performance on defense counsel's part either before trial based on Dr. Merikangas's previously mentioned conclusion in his report or during trial based on the doctor's testimony as it was received, cf. Woods v. Commissioner of Corrections, 85 Conn. 544, 553 (2004), for example, where it was critical to the court's ruling favoring the petitioner that an expert was presented by the petitioner at the habeas proceeding to support his claim that there was a viable diminished capacity defense that was not sufficiently supported at trial.
An additional problem with the petitioner's position is that defense counsel testified at these proceedings that Dr. Merikangas had unequivocally told him a § 53a-13(c) insanity defense was not possible in the case. And this was after the doctor had completed his testing. This doctor is an experienced and well-recognized psychiatric and neurological expert in the area of criminal law. The report he submitted to the lawyer only spoke of extreme emotional distress and as indicated only talked in terms of a "reduced" ability of the petitioner to control his conduct. At that point defense counsel could rely on his expert's conclusion as to the viability of the insanity defense and need not have, given all the circumstances, sought to obtain other expert opinion to support a defense theory his own very qualified expert said was not possible, cf. Doehrer v. Commissioner, 68 Conn.App. 774, 783 (2002); Santiago v. Commissioner, 90 Conn.App. 420, 425-26 (2005), also see Strickland v. Washington at 466 U.S. pp. 690-91 on nature of duty to investigate a case and its view that in assessing exercise of this duty "a heavy measure of deference must be given counsel's judgments." As to the trial testimony of the doctor, for reasons previously discussed, defense counsel could have been expected to make a basically lay analysis to the effect that no matter what Merikangas's report said or what he told me in conversation, I really do have an insanity defense here under § 53a-13(a).
In conclusion, the court found the defense legal expert to be a very candid witness and to summarize the court's position on this claim it would refer to a question posed to that lawyer and his concise response. He was asked to assume defense counsel had consulted with Dr. Merikangas and that counsel: "did ask (Dr. Merikangas) what defenses do I have. Assume even further that he asked do I have mental disease or defect, do I have diminished capacity, do I have extreme emotional disturbance, what are my choices and assume Doctor Merikangas then says your only choice is extreme emotional disturbance. The others are not applicable. Would he (the defense attorney) be ineffective? Would he have been . . . would his performance be deficient if he asked that question and receive that answer and relied on the expert in that manner? Yes or No?" The answer by the petitioner's legal expert was:
A. It would not be deficient in my view.
At that point he did not know nor did he have reason to know defense counsel, as he later testified, did so consult with the doctor.
In any event for all the foregoing reasons, the court denies the petitioner's request for habeas relief.