Argued
September 11, 2018
Procedural
History
Amended
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Fuger, J.; judgment denying the petition; thereafter,
the court denied the petition for certification to appeal,
and the petitioner appealed to this court. Appeal dismissed.
Desmond M. Ryan, assigned counsel, for the appellant
(petitioner).
Linda
Currie-Zeffiro, assistant state's attorney, with whom, on
the brief, were John C. Smriga, state's attorney, and
Emily D. Trudeau, assistant state's attorney, for the
appellee (respondent).
Sheldon, Moll and Mihalakos, Js.
OPINION
MOLL,
J.
The
petitioner, Cargil Nicholson, appeals from the denial of his
amended petition for a writ of habeas corpus following the
denial of his petition for certification to appeal. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion in denying his petition for
certification to appeal, (2) erroneously concluded that he
failed to establish that his state and federal constitutional
rights to the effective assistance of counsel were violated,
[1] (3)
abused its discretion in declining to treat a witness at the
habeas trial as an expert witness, and (4) abused its
discretion in failing to review certain evidence admitted at
the habeas trial prior to denying his amended petition for a
writ of habeas corpus. We conclude that the habeas court did
not abuse its discretion in denying the petition for
certification to appeal and, accordingly, dismiss the appeal.
The
following facts, as set forth by this court in the
petitioner's direct appeal from his conviction, and
procedural history are relevant to our disposition of the
petitioner's claims.[2] ‘‘On March 13, 2012, at
approximately 6 p.m., the victim, James Cleary, was dropped
off in front of his apartment building by Michael Vena and
Vincent [Faulkner], with whom he had worked cutting down a
tree that day. The victim carried his two chain saws with him
into the apartment. Vena then drove around to the back of the
apartment building, where he and Faulkner put the
victim's climbing gear and ropes into the victim's
van. The victim greeted his wife and put down his chain saws.
The music from the apartment upstairs was quite loud, and the
victim's wife complained to him.[3] The victim proceeded to go
upstairs, and his wife followed behind him.
‘‘The
victim's wife remained down the hallway while the victim
knocked on the [petitioner's] door, and the door opened.
The victim started yelling at the [petitioner] to turn down
the music. The victim was approximately fifty years old,
weighed approximately 156 pounds, and was five feet, nine
inches tall. The [petitioner], who was approximately five
feet, seven inches to five feet, eight inches tall, and
weighed approximately 175 pounds, then punched the victim in
the face. The victim hit him back. The [petitioner] then
pulled the victim into the apartment and a scuffle ensued,
which was heard by the victim's wife, who had remained
down the hallway. The [petitioner] called the victim
‘the f-ing white devil.' The [petitioner] then
repeatedly hit the victim with an umbrella.
‘‘The
[petitioner's] live-in girlfriend, Tracy Wright, had been
in the bathroom washing her hair when the scuffle first
ensued. Upon exiting the bathroom, Wright saw the
[petitioner] and the victim fighting. Wright tried to get
between the victim and the [petitioner] to stop the fight,
but the victim pushed her back. The [petitioner] then grabbed
a stool with both hands and hit the victim in the back with
it at least once, but may have hit him as many as four times.
The force of the blow to the back was ‘pretty
hard,' hard enough that the victim would ‘feel the
pain.' Wright told the [petitioner] to put down the
stool, thinking that the [petitioner] could hurt or kill the
victim with the stool, and the [petitioner] complied.
‘‘Wright
then grabbed the victim by the arm, and, while standing
beside him, opened the door, and the victim went out into the
hallway, proceeding sideways through the doorway. Although
Wright did not notice any blood or witness the victim being
stabbed, the [petitioner], after putting down the stool, had
picked up a knife from the counter and had stabbed the victim
in the back, either before or shortly after Wright had
grabbed the victim by the arm. The stab wound in the
victim's back was seven and one-quarter inches deep.
After getting the victim out of the apartment, Wright called
911, telling the dispatcher that she had pushed the victim
out the door. The [petitioner] washed off the knife before
the police arrived.
‘‘The
altercation inside the apartment took only seconds, and when
the victim staggered out of the [petitioner's] apartment,
he told his wife that the [petitioner] had stabbed him in the
back. The victim's shirt was pulled up, his woolen cap
had been pulled off, and he was bleeding from his back. Panic
stricken, the victim's wife ran downstairs, where she
grabbed her purse so that she could take the victim to the
hospital. She then went into the hallway looking for the
victim. When she could not find him in the hallway, she went
outside to the front of the house, where she saw the victim
fall to his knees. The victim then told his wife that he
thought he was dying. The victim's wife realized that she
did not have her car keys, so she returned to the apartment
to get them.
‘‘Meanwhile,
Vena, who had dropped the victim off at the front of the
house only five to ten minutes earlier, had finished putting
away the victim's gear and was leaving the property when
he saw the victim lying on the steps. Vena saw blood and
immediately told Faulkner to get out of the truck and to help
the victim, which he did. The victim then
‘stumbled' into the backseat of the truck, and
Faulkner jumped into the front passenger's seat. The
victim told Vena, ‘He stabbed me.' Vena then called
911 and drove to the Main Street intersection, where he
waited for the ambulance to arrive. The victim died as a
result of the stab wound.'' (Footnote in original.)
State v. Nicholson, 155 Conn.App. 499,
500-503, 109 A.3d 1010, cert. denied, 316 Conn. 913, 111 A.3d
884 (2015).
The
petitioner was arrested and charged with murder in violation
of General Statutes § 53a-54a (a). The case was tried to
a jury over the course of several days. During the first day
of evidence, the state called the victim's wife to
testify.
During
cross-examination, the victim's wife testified that the
victim had been taking unspecified medications. The
petitioner's criminal defense counsel, Jonathan
Demirjian, asked her to identify those medications.
The
state objected to that inquiry, contending that the court
needed to address a pending motion in limine filed by the
state, which sought to preclude evidence of the victim's
toxicology results. Outside of the jury's presence,
Demirjian questioned the victim's wife about the
victim's medications. She testified that the victim had
been taking Soma for back pain, methadone, and an
unidentified antianxiety medication. Demirjian informed the
trial court that he intended to elicit testimony from the
victim's wife about the victim's medications in front
of the jury, asserting that the testimony was relevant to the
victim's state of mind and conduct during the altercation
with the petitioner. The state objected, arguing that the
testimony regarding the medications constituted inadmissible
character evidence. Following argument, the court stated:
‘‘I think the connection you're trying to
draw is that these substances made [the victim] act in a
bizarre manner. And I'm not so sure that connection can
be drawn on this state of the evidence. Anyways I'll
ponder the issue and rule tomorrow.'' The following
day, the court stated: ‘‘We left off last -
yesterday afternoon talking about the fact that the victim
was on a Methadone maintenance program and had used some
substance for backaches or muscle aches. At this point in
time I've concluded that the [state is] correct in [its]
objection that that's not relevant and it would be unduly
prejudicial. It would merely invite speculation on the part
of the jury so the state's request with respect to its
motion in limine is granted.''
On the
third day of evidence, the state called H. Wayne Carver, the
chief state medical examiner, who had performed the
victim's autopsy, to testify. Before beginning his
cross-examination of Dr. Carver and outside of the jury's
presence, Demirjian informed the court that he intended to
question Dr. Carver regarding the toxicological results from
the victim's autopsy. Demirjian offered to the court the
victim's autopsy report, attached to which was the
victim's toxicology report. The document was marked as an
exhibit for identification. Demirjian argued that the
toxicology report indicated that several drugs were found in
the victim's system at the time of his death and that
those drugs likely affected the victim's state of mind
and conduct during the altercation with the petitioner. The
state objected, arguing that the proffered evidence regarding
the drugs constituted inadmissible character evidence and was
irrelevant. The state further argued that the petitioner had
not disclosed an expert to provide testimony explaining the
effects of the drugs on the victim's state of mind at the
time of the altercation. Following argument, the court
stated: ‘‘Dr. Carver has testified about the
manner and cause of death and I don't see how drugs in a
system relate to a stab wound having caused the death, so
it's not relevant on that issue. And then Mr. Demirjian
you've claimed that the substances and the drugs in the
[victim's] body may relate to other issues in the case,
that is the [victim's] state of mind. . . . The state has
not at this point put [the victim's] state of mind in
issue and neither side has. So it's just not relevant to
the cross-examination of Dr. [Carver]. And putting that
evidence in the case would just leave the groundwork for the
jury to speculate in the absence of any evidence as to how
such drugs would affect [the victim's] state of mind. So
the court's ruling is that it does not relate to the
direct examination of Dr. Carver and therefore the
state's motion [in limine] is granted.''
During
the petitioner's case-in-chief in the criminal trial,
Demirjian called several witnesses to testify, including the
petitioner. Demirjian did not call an expert witness to offer
testimony regarding the presence and effects of the drugs
found in the victim's system. The petitioner raised
defense of premises as a justification defense at the
criminal trial, and the trial court instructed the jury on
this defense. State v. Nicholson, supra,
155 Conn.App. 503. The petitioner was found not guilty on the
murder charge, but he was convicted of manslaughter in the
first degree in violation of General Statutes § 53a-55.
Id. The petitioner appealed from the judgment of
conviction, claiming that the state failed to present
sufficient evidence to disprove his defense of premises
justification defense beyond a reasonable doubt and that the
prosecutor engaged in impropriety during closing argument.
Id., 500. This court affirmed the judgment.
Id., 519.
On
March 19, 2014, the petitioner, representing himself, filed a
petition for a writ of habeas corpus. On July 12, 2016, after
appointed habeas counsel had appeared on his behalf, the
petitioner filed an amended one count petition claiming that
Demirjian rendered ineffective assistance by failing to call
Dr. Carver or another expert witness during the criminal
trial to lay foundational testimony to admit the victim's
toxicology report into evidence.[4]
On
January 10, 2017, the habeas court, Fuger, J., held
a one day trial. The court heard testimony from Joel Milzoff,
a forensic toxicologist, and Demirjian. The petitioner did
not testify. Immediately following the parties'
respective closing arguments, the court issued an oral
decision from the bench denying the amended
petition.[5]Thereafter, the petitioner filed a petition
for certification to appeal from the judgment denying the
amended petition, which the court denied. This appeal
followed. Additional facts and procedural history will be set
forth as necessary.
I
The
petitioner first claims that the habeas court abused its
discretion in denying his petition for certification to
appeal from the judgment denying his amended petition for a
writ of habeas corpus. We disagree.
We
begin by ‘‘setting forth the procedural hurdles
that the petitioner must surmount to obtain appellate review
of the merits of a habeas court's denial of the [amended]
habeas petition following denial of certification to appeal.
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.) Grover v.
Commissioner of Correction, 183 Conn.App. 804,
811-12, A.3d, cert. denied, 330 Conn. 933, A.3d (2018).
For the
reasons set forth in parts II, III, and IV of this opinion,
we conclude that the petitioner has failed to demonstrate
that his claims are debatable among jurists of reason, a
court could resolve the issues in a different manner, or the
questions are adequate to deserve encouragement to proceed
further. Thus, we conclude that the ...