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Bharrat v. Commissioner of Correction

Court of Appeals of Connecticut

July 26, 2016

GANESH BHARRAT
v.
COMMISSIONER OF CORRECTION

          Argued March 1, 2016

         Appeal from Superior Court, judicial district of Tolland, Fuger, J.

          Douglas H. Butler, assigned counsel, for the appellant (petitioner).

          Megan L. Wade, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).

          Alvord, Prescott and Bear, Js.

          OPINION

          PRESCOTT, J.

         The petitioner, Ganesh Bharrat, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion by denying his petition for certification to appeal and by rejecting his claims that his trial counsel provided ineffective assistance of counsel. Having thoroughly reviewed the record, we conclude that the habeas court properly denied the petition for certification to appeal, and, accordingly, we dismiss the appeal.

         The following facts, as set forth by this court in the petitioner’s direct appeal or found by the habeas court, and procedural history are relevant to this appeal. ‘‘[O]n December 24, 2005, the [petitioner] met the victim, Jose Morales, in a bar. After conversing with the victim, the [petitioner] accompanied the victim to the victim’s apartment in Hartford. Later that evening, after the victim had fallen asleep, the [petitioner] entered the victim’s bedroom and stabbed the victim numerous times with a knife, thereby causing his death. The [petitioner] left the victim’s apartment with the keys to the victim’s automobile as well as the victim’s wallet and cellular telephone. The [petitioner] drove away from the scene in the victim’s automobile, later renting the automobile to Henry Garcia. The [petitioner] used the victim’s cellular telephone and, later, stashed the victim’s wallet and house keys in the apartment where he had been living at the time of the crimes. Later, police discovered the murder weapon and the bloodstained clothing worn by the [petitioner] at the time of the murder, both of which contained the victim’s genetic material, in the [petitioner’s] apartment. By means of statements that the [petitioner] made to the police, he fully implicated himself in the victim’s murder. Referring to the victim’s death, the [petitioner] stated to the police, ‘He got what he deserved. I did what I had to do.’ ’’ State v. Bharrat, 129 Conn.App. 1, 3–4, 20 A.3d 9, cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011).

         Following a jury trial, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes§ 53a-101 (a) (1), and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). The trial court merged the petitioner’s sentence for his felony murder conviction with his sentence for his murder conviction, and sentenced the petitioner to a total effective term of fifty-five years imprisonment.

         The petitioner appealed to this court from the judgment of conviction. He claimed on direct appeal ‘‘(1) that the trial court improperly failed to deliver an instruction on the defense of diminished capacity; (2) that the court’s instruction concerning evidence of intoxication, as it related to the crime of murder, was deficient; (3) that the evidence was insufficient to prove that he committed felony murder; and (4) that the court improperly expanded the offense of felony murder.’’ Id., 3. This court affirmed the judgment of conviction. In doing so, we specifically concluded, among other things, that the trial court properly declined to instruct the jury on the defense of diminished capacity because the petitioner’s trial counsel failed to offer any evidence from which the jury could infer that the petitioner was incapable of forming the requisite intent to kill the victim on the ground of diminished capacity. Id., 12–16. We also concluded that the petitioner waived his claim that the court improperly expanded the offense of felony murder, because the petitioner’s trial counsel had failed to take an exception to that portion of the jury instruction. Id., 35.

         Subsequently, on May 14, 2013, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. The petitioner alleged that the performance of his trial counsel, Michael J. Isko, [1] was deficient because he failed to present expert psychiatric evidence at trial to establish a diminished capacity defense, and because he failed to object to the trial court’s jury instructions regarding whether the burglary offense, which was the predicate felony for the felony murder offense, could itself be based on an intent to commit assault or an intent to commit larceny. On June 9, 2014, the habeas court, Fuger, J ., held a trial in which it heard testimony from Isko and Radhika Mehendru, a psychiatrist at the Institute of Living, who had evaluated the petitioner days prior to the commission of the crimes.

         After trial, the habeas court denied the petition for a writ of habeas corpus. The court concluded that Isko’s failure to offer expert testimony concerning the diminished capacity defense was not deficient performance and did not prejudice the petitioner. The habeas court further concluded that the petitioner had abandoned his claim that Isko’s failure to object to the jury instructions was ineffective assistance, and, even if this claim was not abandoned, the petitioner had failed to establish prejudice. The petitioner filed a petition for certification to appeal from the judgment of the habeas court, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

         As an initial matter, we set forth the applicable standard of review and principles of law. ‘‘In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Emphasis in original; internal quotation marks omitted.) Taft v. Commissioner of Correction, 159 Conn.App. 537, 543–44, 124 A.3d 1, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015).

         ‘‘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). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment [to the United States constitution]. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.’’ (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). ‘‘[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.’’ Strickland v. Washington, supra, 697.

         ‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . [T]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.’’ (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

         I

         The petitioner first claims that the habeas court abused its discretion by denying his petition for certification to appeal because it is debatable amongst jurists of reason that Isko’s failure to offer expert testimony regarding a diminished capacity defense constituted deficient performance. Specifically, the petitioner contends that had expert testimony been offered regarding the mental disorder from which he allegedly suffered at the time of the commission of the crimes, the trial court would have instructed the jury on his diminished capacity defense. The respondent, the Commissioner of Correction, contends that the habeas court properly concluded that Isko’s performance was not deficient because his decision not to offer testimony from an expert witness concerning a diminished capacity defense was a reasonable, strategic decision. We agree with the respondent.

         The following additional facts and procedural history are relevant to this claim. During the underlying criminal trial, Isko did not offer testimony from an expert witness concerning the petitioner’s mental health at the time of the commission of the crimes. Rather, Isko attempted to establish through lay witnesses that the petitioner had diminished capacity, and, thus, was incapable of forming the requisite intent to commit murder. To effectuate this strategy, Isko cross-examined Sergeant Timothy Shaw of the Hartford Police Department, who testified that the petitioner had claimed to suffer from bipolar disorder. Specifically, the petitioner had told Shaw that he heard voices and that drinking water felt like he was drinking blood. Isko also offered the testimony of Annette Deonarine, a woman with whom the petitioner claimed to be in a romantic relationship. Deonarine testified at trial that not only had she never been in a romantic relationship with the petitioner, but that he was obsessed with her and was delusional, as evidenced by his belief that he was in a romantic relationship with her. After the petitioner rested his case, Isko requested that the jury be instructed on diminished capacity. The court declined to instruct the jury on diminished capacity, concluding that there was no evidence to support such an instruction.

         The habeas court determined that the petitioner had alleged that Isko ‘‘was ineffective because he failed to produce expert psychiatric evidence at trial to support a jury instruction of diminished mental capacity in order to support a jury instruction that his diminished mental capacity precluded him from forming the requisite specific intent to commit [murder]. In support of this claim, the petitioner presented [testimony from Mehendru and Isko] . . . .

         ‘‘According to [Mehendru], she evaluated the petitioner on December 14 and 19, 2005, merely days prior to the offense date of December 24, 2005. The petitioner, at the time she evaluated him, suffered from substance induced mood disorder and antisocial personality disorder. [Mehendru] testified that someone with these disorders nevertheless wilfully decides to break the law. Although the petitioner reported hearing voices, he was able to isolate his inner world from the real world. Similarly, he reported hallucinatory images, but he had no problems dealing with them. The petitioner did not lose touch with reality even though he had a psychotic symptom. The psychosis experienced by the petitioner was not a primary feature or diagnosis. [Mehendru] further noted that although the petitioner had difficulties with impulsivity, she found his impulse control to be adequate. The petitioner had made a suicide attempt before and had suicidal ideations; however, he never mentioned homicidal ideations. [Mehendru] also noted that there were many inconsistencies in what the petitioner self-reported and that she suspected that he was malingering. On cross-examination, [Mehendru] described the petitioner as manipulative and demanding, and as someone who would push the limits of what he could get away with. The petitioner, according to [Mehendru], knew right from wrong and chose to break the law.

         ‘‘The only other witness to present testimony about asserting a diminished mental capacity defense was [Isko]. According to [Isko], the defense team evaluated whether a defense of mental disease or defect was a viable defense. To that end, the defense team consulted with an expert at Yale University, but that expert concluded that the petitioner’s psychosis was drug induced and, therefore, not a viable basis for a defense of mental disease or defect [pursuant to General Statutes § 53a-13 (b)].[2] Similarly, a personality disorder also would not support such a defense. . . . Isko further testified that the defense team, which had the petitioner’s records from the Institute of Living, looked at whether there was a diminished ...


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