Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nicholson v. Commissioner of Correction

Court of Appeals of Connecticut

December 4, 2018

CARGIL NICHOLSON
v.
COMMISSIONER OF CORRECTION

          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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.