Zachs v. Commissioner of Correction ( 2021 )

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ADAM M. ZACHS v. COMMISSIONER
OF CORRECTION
(AC 43380)
Moll, Alexander and Bishop, Js.
Syllabus
The petitioner, who had been convicted of the crime of murder, sought a
writ of habeas corpus, claiming, inter alia, that his criminal trial counsel,
D and W, had rendered ineffective assistance. The petitioner, who had
shot the victim during an altercation at a café, testified at trial that
the gun he was carrying at the time of the shooting had accidentally
discharged. When the state sought to present rebuttal testimony from
six witnesses as to prior uncharged conduct by the petitioner related
to his use of guns, the trial court, at the request of D, who sought to
avoid a conflict of interest, admitted W pro hac vice for the purpose of
cross-examining the state’s rebuttal witnesses, two of whom were then
represented by D in other matters. Neither D nor W thereafter cross-
examined the rebuttal witnesses. The court, at D’s request, instructed
the jury as to certain lesser included offenses within the crime of murder
and on the affirmative defenses of not guilty by reason of mental disease
or defect and extreme emotional disturbance. The petitioner alleged
that D was ineffective because, inter alia, the affirmative defenses and
lesser included offenses were inconsistent with the petitioner’s trial
testimony, that the only reasonable trial strategy would have been for
D to pursue a claim that the gun accidentally discharged and that the
petitioner’s conduct fit the parameters of the lesser included offense of
manslaughter in the second degree. The petitioner also grounded his
ineffective assistance of counsel claim in D’s conflict of interest in
concurrently representing two of the state’s rebuttal witnesses and D’s
decision to have W handle the cross-examination of those witnesses,
which the petitioner asserted was insufficient to ameliorate the possibil-
ity that he would be prejudiced by D’s conflict of interest. The petitioner
further asserted that D was ineffective in having conceded the issue of
whether the petitioner had intended to kill the victim by asserting the
affirmative defenses and by presenting a theory of the case at trial that
was inconsistent with the petitioner’s testimony that the gun accidentally
discharged. The petitioner also asserted that W was ineffective for having
failed to cross-examine the rebuttal witnesses. The habeas court denied
the habeas petition, concluding, inter alia, that neither D nor W had
rendered ineffective assistance, and that the petitioner mischaracterized
the defense case D had presented in that D had argued repeatedly
before the jury that the gun discharged accidentally. The court further
determined that the petitioner had procedurally defaulted on and waived
his claim that D’s concurrent representation of the two rebuttal wit-
nesses constituted an actual conflict of interest. The habeas court there-
after granted the petitioner certification to appeal, and the petitioner
appealed to this court. Held:
1. The habeas court correctly denied the petitioner’s claim that D rendered
ineffective assistance, as the petitioner failed to establish that there was
no tactical justification for D’s defense strategy, which was consistent
with the petitioner’s testimony that the gun accidentally discharged: the
evidence supported the court’s finding that D’s primary strategy was to
argue that the gun was fired accidentally, as the first issue D discussed
during closing argument to the jury was whether the petitioner intended
to kill the victim, D later reminded the jury that it had to make a
determination as to that issue, and he spent a significant amount of
time arguing that the shooting was accidental; moreover, the petitioner’s
claim that it was unreasonable for D to present a defense that was
inconsistent with the petitioner’s testimony was misplaced, as D’s strat-
egy to show that the petitioner lacked the intent to kill the victim
comported with the petitioner’s explanation of how the gun discharged,
it was not deficient performance to pursue defenses that were inconsis-
tent with each other, and it was inconsistent with the principle that a
defendant is innocent until proven guilty for the petitioner to suggest
that D, by presenting the affirmative defenses, conceded that he intended
to kill the victim, the trial court having made it abundantly clear to the
jury that it had to first decide whether the petitioner was guilty of
murder before it could reach the affirmative defenses; furthermore,
D’s decision to present the affirmative defenses and the supporting
testimony of a psychologist was not unreasonable because of the mere
possibility that it could have led to the admission of the state’s rebuttal
evidence, as the psychologist had been called to testify before D
requested jury instructions as to the affirmative defenses, the court,
prior to the psychologist’s testimony, had ruled against the admission
of evidence of prior incidents in which the petitioner displayed guns,
and the court instructed the jury that the rebuttal evidence could not
be used as evidence of intent.
2. The petitioner could not prevail on his claim that the habeas court erred
in concluding that he procedurally defaulted on and waived his conflict
of interest claim as to D:
a. The habeas court appropriately concluded that the conflict of interest
claim was procedurally defaulted, as the petitioner could not establish
good cause for not raising that issue on direct appeal; contrary to the
petitioner’s assertion that his claim could not be procedurally defaulted
because the record was inadequate to raise it on direct appeal, the
factual and legal basis of the claim was available to counsel at the time
of appeal, as the record established that D explained the conflict to the
trial court, which then explained to the petitioner that D would have a
conflict if he cross-examined the rebuttal witnesses, the trial court
acquired the petitioner’s assent to proceed with W handling the cross-
examination of the state’s rebuttal witnesses, and the record revealed
the immediate consequences of D’s apparent conflict of interest, as W
handled the cross-examination but asked no questions.
b. The petitioner’s claim that the habeas court improperly found that
he waived his conflict of interest claim as to D was unavailing: the
record indicated that D and the petitioner discussed the conflict during
a recess at trial, and that the petitioner subsequently stated to the trial
court his approval of having W cross-examine the rebuttal witnesses
after the trial court advised him that D could not adequately and fairly
cross-examine them as a result of the conflict; moreover, contrary to
the petitioner’s assertion that his waiver of D’s conflict of interest was
premised on cross-examination of the state’s rebuttal witnesses actually
occurring, the defense plan was not to ask any questions of the rebuttal
witnesses, and, with the exception of two of the rebuttal witnesses who
had heard from the petitioner about one of the prior incidents at issue,
none of the state’s six rebuttal witnesses was cross-examined; further-
more, the petitioner’s waiver of his conflict of interest claim did not
foreclose him from claiming that W’s handling of those cross-examina-
tions constituted ineffective assistance.
c. The habeas court correctly determined that the petitioner had proce-
durally defaulted on his claim pursuant to United States v. Cronic (466
U.S. 648) that prejudice against him should have been presumed because
of D’s conflict of interest, the Cronic claim having had a factual basis that
was identical to the petitioner’s unsuccessful conflict of interest claim.
3. The habeas court correctly denied the petitioner’s claim that he was
entitled to a presumption of prejudice under Cronic, which was based
on his assertion that W rendered ineffective assistance by failing to
cross-examine two of the state’s rebuttal witnesses and to subject its
case to meaningful adversarial testing: W’s actions did not rise to a level
that would constitute such a failure, and, even if it were presumed that
it was error for W not to have cross-examined the two rebuttal witnesses,
his failure was not complete, as the testimony of the rebuttal witnesses
was admitted for the limited purpose of credibility, the issue concerned
only two of dozens of witnesses who testified during trial, the substan-
tially similar testimony of two other witnesses was unchallenged, and
D subjected the state’s case to meaningful adversarial testing through
his objections, voir dire and cross-examinations of the state’s witnesses,
and presentation of four defense witnesses; moreover, although analysis
of W’s alleged failures was more appropriate pursuant to the perfor-
mance and prejudice test for ineffective assistance of counsel under
Strickland v. Washington (466 U.S. 668), no further analysis was neces-
sary, the petitioner having explicitly stated that his claim should not be
analyzed for prejudice under Strickland.
4. The habeas court did not improperly decline to consider the aggregate
effect of the trial court’s alleged errors; because the petitioner failed to
prove each of his individual underlying claims of error and our Supreme
Court has declined to adopt such a cumulative error analysis, it was not
within this court’s authority to grant the petitioner the relief he sought.
Argued April 15—officially released June 15, 2021
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, Newson, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Jennifer B. Smith, with whom was Aaron J. Romano,
for the appellant (petitioner).
Samantha L. Oden, deputy assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Jo Anne Sulik, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, Adam M. Zachs, appeals
from the judgment of the habeas court, Newson, J.,
denying his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court improperly
(1) denied his ineffective assistance of counsel claim
regarding the defense strategy employed at his criminal
trial by one of his defense attorneys, Attorney Edward
J. Daly, Jr., (2) determined that his conflict of interest
claim was both procedurally defaulted and waived, (3)
denied his ineffective assistance of counsel claim
regarding the failure of his other defense attorney,
Attorney Brian W. Wice, to cross-examine the state’s
rebuttal witnesses at his criminal trial, and (4) declined
to apply a cumulative prejudice approach and consider
the aggregate effect of counsels’ alleged errors. We
affirm the judgment of the habeas court.
The jury in the petitioner’s criminal trial reasonably
could have found the following facts. On March 22,
1987, the petitioner went to the Prospect Café in West
Hartford to watch a basketball game on television.
Shortly thereafter, the victim, Peter Carone, and his
fiancée, Kathleen O’Brien, arrived to watch the basket-
ball game and sat next to the petitioner at the bar. The
victim bought the petitioner a drink after he moved
down a seat to make room for the victim and O’Brien.
The petitioner, the victim, and O’Brien spent most of
the afternoon seated at the bar together, having drinks
and casually discussing the basketball game.
Later that evening, the victim told a joke to another
patron at the bar about a ‘‘spit shine.’’ As part of this
joke, he spat on the bar and wiped it up with a napkin.
The petitioner, a regular customer at the bar, was
offended by the victim’s actions. He sat at the bar for
a few more minutes, then walked to the other end of
the bar to tell the bartender and the waitress that he
wanted to pay his bill and leave. The petitioner told the
waitress that he was ‘‘disgusted’’ by the victim’s actions,
called him a ‘‘pig,’’ and stated that ‘‘the only reason he’s
not going to deck the guy . . . was because there were
ladies present.’’ The petitioner then left the bar, and
went to his car and sat in it for a few minutes before
reentering the bar to speak to the waitress about what
had happened. As the petitioner approached the wait-
ress, the victim turned to him to apologize and to discuss
why the petitioner had left the bar. The petitioner and
the victim spoke about the incident for a few minutes
and then stepped outside the bar to talk. The petitioner
testified that they both insisted that they did not want
to fight.
The petitioner and the victim stood outside the bar
‘‘[i]immediately in front of [the] main door.’’ Several
witnesses had a partial view of where they were stand-
ing and intermittently looked out the window to see if
a fight would break out. After about four minutes, the
victim turned and approached the main door to the bar.
Just as the victim reached the door, the petitioner shot
him once in the back with a pistol that he had tucked
into the waistband of his pants, killing the victim.1
The petitioner subsequently was charged with mur-
der in violation of General Statutes § 53a-54a (a). At his
criminal trial, he was represented by Attorney Daly and,
for a limited portion of the trial, by Attorney Wice, who
was licensed to practice law in Texas and was admitted
by the trial court pro hac vice for the limited purpose
of cross-examining the state’s rebuttal witnesses. See
part II of this opinion. Attorney Daly2 requested jury
instructions on the lesser included offenses of man-
slaughter in the first degree, manslaughter in the second
degree, and criminally negligent homicide. He also
requested jury instructions on the affirmative defenses
of not guilty by reason of mental disease or defect
and extreme emotional disturbance. With no objections
from the state, the court granted those requests. After
a jury trial, the petitioner was found guilty of murder
and sentenced to sixty years of incarceration on Octo-
ber 13, 1988. The petitioner was released after posting
an appeal bond and thereafter absconded to Mexico
where he lived under an assumed identity until being
returned to the United States in 2011. Although the
petitioner had filed a direct appeal from the judgment
of conviction, his appeal was dismissed after his disap-
pearance on the basis of a motion filed by the state.
On September 28, 2012, the self-represented peti-
tioner filed a petition for a writ of habeas corpus. The
petitioner filed the operative petition, his fourth
amended petition for a writ of habeas corpus, with the
assistance of counsel on September 17, 2018. The fourth
amended petition contained eight counts, five of which
are relevant to this appeal. Specifically, in count two,
the petitioner alleged that Attorney Daly rendered inef-
fective assistance by presenting an objectively unrea-
sonable defense. In count three, the petitioner alleged
that Attorney Daly had a conflict of interest that materi-
ally prejudiced his defense, and, in count four, he
alleged that this conflict of interest entitled him to a
presumption of prejudice under United States v.
Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657(1984). In count five, the petitioner alleged that Attorney
Wice, who handled only a small portion of the petition-
er’s criminal trial, was ineffective in failing to cross-
examine two of the state’s rebuttal witnesses. Count
five included claims brought under Cronic and Strick-
land v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Last, in count eight, the petitioner
alleged that the cumulative effect of his counsels’
actions deprived him of a fair trial. The claims set forth
in the remaining counts have not been advanced on
appeal.
A trial on the habeas petition was held on November
26 and 27, 2018. On July 23, 2019, the habeas court,
Newson, J., issued a memorandum of decision in which
it denied each of the petitioner’s claims. Thereafter, the
petitioner filed a petition for certification to appeal from
the judgment denying his petition for a writ of habeas
corpus. The habeas court granted the petition for certifi-
cation to appeal. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
Before we turn to the petitioner’s claims, we briefly
set forth our standard of review for habeas corpus
appeals. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[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
We first address the petitioner’s claim that the habeas
court improperly concluded that Attorney Daly did not
provide ineffective assistance with regard to the
defense strategy he employed at the petitioner’s crimi-
nal trial. Specifically, the petitioner argues that the affir-
mative defenses advanced by Attorney Daly were objec-
tively unreasonable and that the only reasonable trial
strategy was to pursue a conviction of manslaughter
that was based on a defense that the petitioner’s gun
had accidentally discharged. Additionally, the petitioner
argues that the court’s characterization of Attorney
Daly’s trial strategy was clearly erroneous. We agree
with the court’s characterization of Attorney Daly’s stra-
tegic choices at trial and with the court’s subsequent
conclusion that the petitioner failed to demonstrate that
counsel’s strategy was objectively unreasonable.3
The following additional facts are relevant to our
resolution of this claim. To support the affirmative
defenses posed by defense counsel, the petitioner testi-
fied at his criminal trial concerning an incident that
occurred in February, 1986, when, while he was asleep,
a large male kicked in his bedroom door. The petitioner
explained that he went to bed early that night, then
was suddenly awakened to find the large male standing
over him and threatening to kill him. The individual
threatened to kill the petitioner if he ‘‘ever tormented
his sister again.’’ The petitioner did not know to whom
he was referring. After the incident, the petitioner testi-
fied that he became afraid to leave his house. A few
days later, he saw an advertisement for a gun shop.
The incident prompted the petitioner to purchase two
firearms, a .22 caliber Beretta and, eventually, the nine
millimeter Smith & Wesson that he used in the shooting.
He explained that he had purchased these firearms
because he was still scared from the encounter and
carried one of them with him for ‘‘[e]very occasion.’’
The petitioner further explained that this incident
greatly impacted how he handled the confrontation with
the victim on March 22, 1987, and testified that he acci-
dentally discharged the gun, which caused the victim’s
death. The petitioner testified that he tried to end their
conversation outside the bar, but the victim ‘‘stepped
very close’’ to the petitioner and continuously told him
that he thought it was ‘‘stupid’’ that he had left the
bar. The petitioner became nervous and began to step
backward, but the victim matched each step, moving
toward the petitioner until his back was pressed against
either a wall or a fence. The petitioner explained that
‘‘[e]verything was very dim and foggy and . . . in
speaking to him, I felt like my brain wasn’t in control
of my mouth, that I was listening to the words come
out of my mouth, that it wasn’t me speaking them.’’ He
testified that he was instantly reminded of the break-
in incident. It felt like there was a ‘‘movie screen’’ in
his head and that all he could see was the individual
who had broken into his bedroom. The next thing that
the petitioner recalled was the victim hitting the side
of his head, at which point the sensation of seeing a
‘‘movie screen’’ abruptly stopped. He suddenly realized
that he was holding a gun and that the victim was
standing in front of him, not the individual from the
break-in. He did not remember drawing the gun. Then,
the victim swung his hand and knocked the gun from the
petitioner’s hands, launching it upward. The petitioner
explained that he reached out to catch the gun before
it dropped to the ground, catching it ‘‘sandwiched
between [his] two hands’’ with the barrel pointing
toward himself. As he attempted to flip the gun around,
he accidentally discharged it.
The petitioner did not consult with any physicians
about the break-in incident prior to the confrontation
with the victim, but, at the criminal trial, Attorney Daly
called Charles A. Opsahl, a psychologist, who testified
that he had met with the petitioner approximately forty
to forty-five times beginning in October, 1987. Dr. Opsahl
opined that the petitioner was suffering from post-trau-
matic stress disorder as a result of the break-in. He fur-
ther opined that the petitioner entered a ‘‘dissociative
state’’4 during his argument with the victim as a result
of his post-traumatic stress disorder and ultimately con-
cluded that the dissociative state ‘‘had a major impact
on his ability to control his behavior. . . . He was out
of control because of the dissociative state.’’
The state presented rebuttal evidence from Anne M.
Phillips, a clinical psychologist, and Peter M. Zeman, a
psychiatrist. Dr. Phillips concluded, on the basis of her
two interviews with the petitioner, that there was no
evidence of cognitive impairment, a neuropsychological
deficit, a thought disorder, or an impulse disorder. Dr.
Zeman concluded, on the basis of his four interviews
with the petitioner, that the petitioner did suffer from
post-traumatic stress disorder of moderate intensity as
a result of the break-in incident and that the petitioner
experienced feelings of ‘‘depersonalization,’’ a ‘‘very
much more limited kind of dissociative phenomena’’
during the confrontation with the victim. Dr. Zeman
ultimately concluded, however, that the petitioner did
not enter a ‘‘full-blow[n] dissociative state’’ and that
there was no evidence of ‘‘blocking of thought’’ or delu-
sions.5 He further concluded that ‘‘[the petitioner’s] psy-
chiatric condition did not substantially affect his behav-
ior or his control at that time.’’ The state also presented
a number of lay witnesses in rebuttal who testified
about two prior incidents during which the petitioner
drew guns on other individuals.
Attorney Daly requested jury instructions on the affir-
mative defenses of not guilty by reason of mental dis-
ease or defect and extreme emotional disturbance,6 as
well as lesser included offenses of manslaughter in the
first degree, manslaughter in the second degree, and
criminally negligent homicide.7
We first set forth the general principles surrounding
ineffective assistance of counsel claims and our stan-
dard of review. ‘‘In Strickland v. Washington, [supra,466 U.S. 687], the United States Supreme Court estab-
lished that for a petitioner to prevail on a claim of
ineffective assistance of counsel, he must show that
counsel’s assistance was so defective as to require
reversal of [the] conviction . . . . That requires the
petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary pro-
cess that renders the result unreliable. . . . Because
both prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’’ (Internal quota-
tion marks omitted.) Vazquez v. Commissioner of Cor-
rection, 128 Conn. App. 425, 430, 17 A.3d 1089, cert.
denied, 301 Conn. 926, 22 A.3d 1277 (2011).
‘‘The first component, generally referred to as the
performance prong, requires that the petitioner show
that counsel’s representation fell below an objective
standard of reasonableness. . . . In Strickland, the
United States Supreme Court held that [j]udicial scru-
tiny of counsel’s performance must be highly deferen-
tial. It is all too tempting for a [petitioner] to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate 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 presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment.’’ (Internal quotation marks
omitted.) Santiago v. Commissioner of Correction, 90
Conn. App. 420, 425, 876 A.2d 1277, cert. denied, 275
Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom.
Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164
L. Ed. 2d 254 (2006). ‘‘Furthermore, [a]s a general rule,
a habeas petitioner will be able to demonstrate that
trial counsel’s decisions were objectively unreasonable
only if there [was] no . . . tactical justification for the
course taken.’’ (Internal quotation marks omitted.) Mar-
shall v. Commissioner of Correction, 184 Conn. App.
709, 726, 196 A.3d 388, cert. denied, 330 Conn. 949, 197
A.3d 389 (2018).
‘‘To satisfy the second prong of Strickland, that his
counsel’s deficient performance prejudiced his defense,
the petitioner must establish that, as a result of his
trial counsel’s deficient performance, there remains a
probability sufficient to undermine confidence in the
verdict that resulted in his appeal. . . . The second
prong is thus satisfied if the petitioner can demonstrate
that there is a reasonable probability that, but for that
ineffectiveness, the outcome would have been differ-
ent.’’ (Internal quotation marks omitted.) Horn v. Com-
missioner of Correction, 321 Conn. 767, 776, 138 A.3d
908 (2016).
‘‘In a habeas appeal, although this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ (Internal quota-
tion marks omitted.) Griffin v. Commissioner of Cor-
rection, 119 Conn. App. 239, 241, 987 A.2d 1037, cert.
denied, 295 Conn. 912, 989 A.2d 1074 (2010).
Additionally, we note that the death of trial counsel,
which deprives the petitioner of testimony on the rea-
soning behind strategic decisions, poses a ‘‘significant
hurdle’’ to a habeas corpus petitioner seeking to prove
a claim of ineffective assistance of trial counsel. Jordan
v. Commissioner of Correction, 197 Conn. App. 822,
823, 234 A.3d 78, cert. granted, 335 Conn. 931, 236 A.3d
218 (2020); see footnote 2 of this opinion. ‘‘The death
of the petitioner’s trial counsel prior to a habeas corpus
trial, however, does not absolve a petitioner of his heavy
burden of overcoming the strong presumption that
counsel provided effective assistance.’’ Id. With the
foregoing principles in mind, we now address the merits
of the petitioner’s claim.
The thrust of the petitioner’s argument on his ineffec-
tive assistance of counsel claim is that the affirmative
defenses Attorney Daly presented at the criminal trial
were inconsistent with the petitioner’s testimony and
the lesser included offenses on which the court
instructed the jury. He asserts that the only objectively
reasonable trial strategy would have been for counsel
to pursue a claim that the weapon was accidentally
discharged and to argue that the petitioner’s conduct
fit the parameters of manslaughter in the second degree.
The petitioner also argued before the habeas court that
Attorney Daly, by offering the affirmative defenses, con-
ceded the issue of intent and presented a theory of the
case that was inconsistent with the petitioner’s testi-
mony that the gun accidentally discharged.
The habeas court rejected the petitioner’s argument,
finding that the petitioner had ‘‘wholly misstate[d] or
mischaracterize[d] the defense case presented by Attor-
ney Daly. While Attorney Daly did present evidence of
a mental disease or defect the petitioner was suffering
from at the time of this incident, he wholly maintained,
as a first line of defense, that the gun went off acciden-
tally and argued repeatedly before the jury that [it]
consider that fact in context with the state’s obligation
to prove that the petitioner fired the gun intentionally
in order to convict him of murder.’’ After making this
finding, the court concluded that it was not objectively
unreasonable for counsel to have presented the affirma-
tive defenses and the lesser included offenses, ques-
tioning ‘‘how it could ever be objectively deficient per-
formance for defense counsel to use available facts,
especially the client’s own story, to offer the jury infor-
mation that, if accepted, would result in an acquittal
on the most serious charge.’’ Thus, the court resolved
the ineffective assistance of counsel claim on the perfor-
mance prong of Strickland and did not reach the issue
of prejudice.
The petitioner first argues that it was clearly errone-
ous for the habeas court to find that an accidental
discharge of the gun was Attorney Daly’s ‘‘first line
of defense.’’ In making this assertion, the petitioner
provides numerous examples in the record where Attor-
ney Daly advanced the affirmative defenses. Our role,
however, is simply to determine whether the court’s
finding has some support in the record, and, to fulfill
this obligation, we look at the entire record and not
merely portions of the record. See, e.g., Orcutt v. Com-
missioner of Correction, 284 Conn. 724, 741–42, 937
A.2d 656 (2007); see also Ampero v. Commissioner of
Correction, 171 Conn. App. 670, 690–91, 157 A.3d 1192,
cert. denied, 327 Conn. 953, 171 A.3d 453 (2017). The
court cited to several examples in Attorney Daly’s clos-
ing argument during which he stressed that the primary
issue in the case was whether the petitioner intended
to kill the victim. Our review of the record reveals
that, in Attorney Daly’s closing argument, after a short
explanation of the jury’s role and a factual summary of
the case, the first issue he discussed (in the form of a
question he posed to the jury) was, ‘‘[d]id [the peti-
tioner] intentionally kill [the victim] on March 22, 1987?’’
He later reminded the jury that the first determination
it had to make was whether the petitioner intended to
kill the victim. Attorney Daly also spent a significant
amount of time arguing that the shooting was accidental
on the basis of the peculiar location of the wound and
trajectory of the bullet, and the fact that only a single
gunshot was fired. In making its assessment, the habeas
court found that Attorney Daly used the evidence
advanced in support of the affirmative defenses as an
explanation for why the petitioner carried guns with
him and why he would have drawn the gun. There is
also support in the record for this finding.8 In sum, it
was not clearly erroneous for the habeas court to find
that Attorney Daly’s primary defense strategy was to
argue that the gun was fired accidentally.
The petitioner next argues that it was objectively
unreasonable to present a defense that was inconsistent
with the petitioner’s testimony. Because we agree that
Attorney Daly’s primary defense strategy was to show
that the petitioner lacked the intent to kill the victim,
which comports with the petitioner’s explanation of
how the gun discharged, the petitioner’s primary argu-
ment is misplaced. To the extent that the petitioner
argues that the affirmative defenses and lesser included
offenses were inconsistent with each other, it is well
established that it is not improper for defense counsel
to pursue defenses that are inconsistent with each
other. This court has concluded that it is consistent with
our case law to present ‘‘inconsistent and alternative
theories of defense’’ to the jury. (Internal quotation marks
omitted.) Jackson v. Commissioner of Correction, 129
Conn. App. 325, 330, 20 A.3d 75, cert. denied, 302 Conn.
947, 31 A.3d 382 (2011); see also State v. Nathan J., 294
Conn. 243, 262, 982 A.2d 1067 (2009) (explaining that ‘‘it
is axiomatic that a defendant may present inconsistent
defenses to the jury’’).
The petitioner further argues that, by presenting the
affirmative defenses, ‘‘Attorney Daly conceded that the
petitioner intended to kill the victim, which conflicted
with his request for [a jury instruction on] a lesser
included offense, which the jury would only consider
if [it] found that the petitioner did not possess the requi-
site intent to kill.’’ (Emphasis in original.) This sugges-
tion is inconsistent with the fundamental principle of
our justice system that a defendant is innocent until
proven guilty. See, e.g., In re Winship, 397 U.S. 358,
362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The court
made it abundantly clear to the jury that it first had to
decide whether the petitioner was guilty of murder and
that only then would it reach the affirmative defenses.9
The jury was further instructed that, if the elements of
the crime of murder were not found, it was then to
proceed to the lesser included offenses. A defendant
does not concede the elements of murder by advancing
an affirmative defense of mental disease or defect, or
extreme emotional disturbance. The state still had to
prove that the petitioner had the required intent to kill
in order to convict him of murder.
Last, the petitioner argues that presentation of the
affirmative defenses was unreasonable because it
added ‘‘unnecessary complexities to the case’’ by
allowing the state to call witnesses in rebuttal whose
testimony tended to show ‘‘that the charged offense
was not an isolated incident and that the petitioner
engaged in a pattern of displaying his gun when threat-
ened.’’ In reviewing claims of ineffective assistance of
counsel, we must make ‘‘every effort . . . 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.’’ (Internal quotation marks omitted.) Gaines v.
Commissioner of Correction, supra, 306 Conn. 679. At
the time that Attorney Daly called Dr. Opsahl to lay the
groundwork for the affirmative defenses, which was
before Attorney Daly had requested the jury instruc-
tions, the court had already ruled against admitting
evidence of the prior incidents in which the petitioner
had displayed his guns. We do not find this strategic
decision to be objectively unreasonable on the basis of
a mere possibility that it could have led to the admission
of the state’s rebuttal evidence, particularly given that
the court instructed the jury that the rebuttal evidence
could not be used as evidence of intent.10
In reaching our conclusion on this claim, we stress
that ‘‘Strickland does not guarantee perfect representa-
tion, only a reasonably competent attorney’’; (internal
quotation marks omitted) Ampero v. Commissioner
of Correction, supra, 171 Conn. App. 681; and that a
petitioner will not be able to demonstrate that trial
counsel’s decisions were objectively unreasonable
unless there was ‘‘no . . . tactical justification for the
course taken.’’ (Internal quotation marks omitted.) Mar-
shall v. Commissioner of Correction, supra, 184 Conn.
App. 726. We cannot conclude that there was no tactical
justification for Attorney Daly’s defense strategy. Given
that Attorney Daly’s primary line of defense was consis-
tent with the petitioner’s testimony, it was not objec-
tively unreasonable to provide additional layers of
defense, supported by expert testimony, should the jury
find the petitioner guilty of murder. We agree with the
habeas court’s skepticism as to whether ‘‘it could ever
be objectively deficient performance for defense coun-
sel to use available facts, especially the client’s own
story, to offer the jury information that, if accepted,
would result in an acquittal on the most serious charge.’’
The habeas court correctly concluded that the peti-
tioner failed to establish that Attorney Daly’s perfor-
mance was deficient and, thus, correctly denied his
ineffective assistance of counsel claim as to Attorney
Daly.
II
The petitioner next claims that the habeas court erred
in concluding that his conflict of interest claim as to
Attorney Daly was both procedurally defaulted and
waived. The petitioner also claims that the conflict of
interest resulted in a complete structural breakdown
of the adversarial system, thus warranting the presump-
tion of prejudice under Cronic. The respondent, the
Commissioner of Correction, argues that the habeas
court properly determined that the petitioner’s conflict
of interest claim was both procedurally defaulted and
waived. We agree with the respondent.11
The following additional facts are relevant to our
resolution of this claim. In September, 1987, roughly
one year before the petitioner’s criminal trial, the peti-
tioner’s father contacted Attorney Wice, a high school
friend who had a law practice based in Texas, and asked
him to assist in the petitioner’s representation. After
receiving permission from Attorney Daly to assist him
with the case, Attorney Wice flew to Connecticut to
meet with the petitioner and his family. Attorney Daly
agreed that Attorney Wice would act as second chair
and assist with research, strategy, crafting a defensive
theory, and anything else that would be helpful. During
the next several months, Attorney Wice reviewed vari-
ous discovery materials and frequently met with Attor-
ney Daly to craft trial strategy. On January 20, 1988,
Attorney Wice filed a motion for permission to appear
as counsel pro hac vice so that he could join Attorney
Daly in representing the petitioner at his criminal trial.
The court denied the motion.12 After the denial of the
motion, Attorney Wice largely stopped assisting with
trial preparation but still attended court every day with
the petitioner.
Five days before the start of trial, the state filed a
notice of intent to introduce evidence of prior bad acts,
specifically testimony concerning two prior events dur-
ing which the petitioner threatened strangers with a
firearm. The state sought to introduce this testimony
in its case-in-chief, but the court denied the request.
After the defense rested, the state sought to introduce
rebuttal testimony from six witnesses who would dis-
cuss these incidents and the petitioner’s relationship
with guns. The court maintained its prior ruling that
the evidence would be inadmissible as proof of the
petitioner’s intent but allowed the state to present the
testimony in an offer of proof to determine the admissi-
bility of the evidence for the purpose of discrediting
Dr. Opsahl. At that point, Attorney Daly requested a
recess and a discussion with the prosecutor off the
record, indicating that the presentation of the rebuttal
witnesses ‘‘presents a rather grave problem for me.’’
After the recess, Attorney Daly explained that two of
the state’s proposed witnesses, Robert Udolf and John
Rubino, ‘‘are clients of mine and my office, and have
been for some substantial period of time.’’ Udolf and
Rubino had been identified as potential state’s wit-
nesses during jury selection, but Attorney Daly did not
raise the potential conflict at that time. He proposed
that Attorney Wice be admitted pro hac vice for the
limited purpose of cross-examining the state’s rebuttal
witnesses. The following exchange then occurred
between the court and the petitioner:
‘‘The Court: And [petitioner], would you come for-
ward. You were in court when the names came up from
[Attorney Daly] concerning the offer of certain evidence
in connection with your conduct in front of certain
offered witnesses. At that point, [Attorney Daly] indi-
cated that he had represented two of these witnesses
previously and that they were clients of his, which raises
at least an apparent conflict. And that he wanted a
recess in order to talk with you concerning his represen-
tation and his ability to be in a position to adequately
and fairly cross-examine these witnesses. He had dis-
cussed this with you?
‘‘[The Petitioner]: Yes, sir.
‘‘The Court: And he’s named the two witnesses to
you that are—or previously had been clients of his?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: And that, by virtue of that, that he does
have a present conflict in cross-examining adequately
and fairly those two witnesses.
‘‘[The Petitioner]: Yes, sir.
‘‘The Court: And he suggested, for that purpose, that
another attorney be engaged by you to do that cross-
examination.
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: And you’re satisfied that he does have
that conflict?
‘‘[The Petitioner]: Yes, sir.
‘‘The Court: And for that purpose you have asked
[Attorney] Wice to stand in for at least those two wit-
nesses?
‘‘[The Petitioner]: Yes, sir.
‘‘The Court: And [Attorney Daly] indicated that, rather
than having some question about their testimony or the
aggregate testimony, that [Attorney] Wice do the whole
cross-examination of all of the witnesses concerning
these two events.
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: And are you satisfied with that arrange-
ment?
‘‘[The Petitioner]: Yes, Your Honor.’’
The court then partially reversed its prior ruling on
the motion for admission pro hac vice, allowing Attor-
ney Wice to be admitted for this limited purpose, noting,
‘‘I don’t see the availability of another counsel who
would be more equipped to do it because [Attorney]
Wice has sat through the whole trial and knows all the
evidence that’s been presented. So that he’s certainly
in a—from a standpoint of knowledge—in a better posi-
tion than any other counsel starting off.’’
With this arrangement in place, the state proceeded
with its offer of proof outside the presence of the jury.
Witnesses Thomas Cronin and Mark Higby described
an incident in October, 1986, during which Cronin had
a confrontation with the petitioner at the Prospect Café.
While at the bar, Cronin’s brother-in-law made a com-
ment about a Jewish friend, which the petitioner over-
heard. Thirty minutes later, the petitioner approached
Cronin and his brother-in-law, and said, ‘‘[d]on’t you
ever fucking say something about Jewish people again
because, if you do, next time I come in here I’m going
to be looking for you.’’ The petitioner then lifted his
shirt, revealing a gun tucked into his waistband. Attor-
ney Daly explained to the court that he would handle
cross-examination of the witnesses who testified about
the October, 1986 first incident because his two clients,
Udolf and Rubino, would testify about only the second
incident. Nevertheless, Attorney Daly did not cross-
examine either witness.
Witnesses Udolf, Rubino, Higby,13 and Kevin McCurry
then testified concerning an incident that occurred at
the Pacifico Bar and Restaurant (Pacifico) in West Hart-
ford on January 23, 1987. Udolf testified that he went
to Pacifico to meet two women for drinks and that they
had to ask the petitioner to stop ‘‘bothering’’ them. The
petitioner followed the group outside and ‘‘start[ed] a
major argument about something.’’ Udolf testified that
he began to feel scared and started to grab chemical
Mace from his pocket, at which point the petitioner
drew his gun, pointed it at Udolf, and said, ‘‘that’s noth-
ing, tough guy . . . .’’ Rubino testified that he went to
Pacifico on January 23, 1987, and, as he was waiting
for the valet to bring him his car, he saw the petitioner
draw his gun on Udolf. McCurry testified that he was
employed as the valet at Pacifico on the same night
and also witnessed the confrontation. Higby testified
that the petitioner later told him about the incident.
Attorney Wice did not cross-examine any of the wit-
nesses, although both he and Attorney Daly objected
to the testimony being presented to the jury.
After the offer of proof, the court allowed the prof-
fered evidence to be submitted to the jury for a limited
purpose.14 The witnesses were then recalled in the pres-
ence of the jury and walked through their testimony
a second time. In addition, Julie Dolinger, a former
roommate of the petitioner who did not testify during
the offer of proof, also testified that the petitioner had
showed her his guns and how to load them, and told
her about the Pacifico incident. During the offer of
proof, Attorney Daly had dealt with the two witnesses
who testified about the Prospect Café incident, and
Attorney Wice had dealt with the four witnesses who
testified about the Pacifico incident. When their testi-
mony was presented to the jury, however, Attorney Daly
handled the testimony of the Prospect Café witnesses,
Higby and Cronin, as well as the Pacifico incident wit-
nesses, Higby, McCurry, and Dolinger, who were not
his clients. He briefly cross-examined Higby and Dol-
inger but did not cross-examine Cronin or McCurry.
Attorney Wice handled the testimony of the two Pacif-
ico witnesses who were Attorney Daly’s clients, Udolf
and Rubino, but did not cross-examine either of them.
The petitioner claimed that Attorney Daly’s concur-
rent representation of Udolf and Rubino resulted in an
actual conflict of interest and that having Attorney Wice
handle their cross-examination was insufficient to ame-
liorate the possibility that Attorney Daly’s conflict would
prejudice the petitioner. The respondent asserted in his
return that the petitioner had procedurally defaulted
on his conflict of interest claim by failing to raise it at
trial or on direct appeal. The respondent claimed, as
well, that the petitioner had waived the claim. The court
agreed with the respondent, concluding that this con-
flict of interest claim was both procedurally defaulted
and waived.
Before we address the petitioner’s claims, we briefly
set forth the law concerning conflicts of interest in
criminal representation. ‘‘It is well established that the
sixth amendment to the United States constitution guar-
antees the right to effective assistance of counsel. . . .
Where a constitutional right to counsel exists, our
[s]ixth [a]mendment cases hold that there is a correla-
tive right to representation that is free from conflicts of
interest.’’ (Citations omitted; internal quotation marks
omitted.) State v. Vega, 259 Conn. 374, 386, 788 A.2d
1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L.
Ed. 2d 56 (2002).
‘‘In a case of a claimed conflict of interest . . . in
order to establish a violation of the sixth amendment the
defendant has a two-pronged task. He must establish
(1) that counsel actively represented conflicting inter-
ests and (2) that an actual conflict of interest adversely
affected his lawyer’s performance. . . . Where there is
an actual conflict of interest, prejudice is presumed
because counsel [has] breach[ed] the duty of loyalty,
perhaps the most basic of counsel’s duties. Moreover,
it is difficult to measure the precise effect on the defense
of representation corrupted by conflicting interests.
. . . Accordingly, an ineffectiveness claim predicated
on an actual conflict of interest is unlike other ineffec-
tiveness claims in that the petitioner need not establish
actual prejudice.’’ (Emphasis in original; internal quota-
tion marks omitted.) Grover v. Commissioner of Cor-
rection, 183 Conn. App. 804, 813, 194 A.3d 316, cert.
denied, 330 Conn. 933, 194 A.3d 1196 (2018).
A
The petitioner first argues that the habeas court
improperly determined that his conflict of interest claim
regarding Attorney Daly was procedurally defaulted
because he did not raise the claim at trial or on direct
appeal. We agree with the habeas court that this conflict
of interest claim could have been raised on direct appeal
and, thus, the habeas court properly ruled that the claim
was procedurally defaulted.
A habeas court’s conclusion that a petitioner’s claim
was in procedural default involves a question of law,
over which our review is plenary. See, e.g., Johnson v.
Commissioner of Correction, 285 Conn. 556, 566, 941
A.2d 248 (2008).
We begin with a review of the procedural default
rule. ‘‘Under the procedural default doctrine, a [peti-
tioner] may not raise, in a collateral proceeding, claims
that he could have made at trial or on direct appeal in
the original proceeding, unless he can prove that his
default by failure to do so should be excused.’’ (Internal
quotation marks omitted.) Cator v. Commissioner of
Correction, 181 Conn. App. 167, 199, 185 A.3d 601, cert.
denied, 329 Conn. 902, 184 A.3d 1214 (2018). Ordinarily,
if the respondent ‘‘alleges that a [petitioner] should be
procedurally defaulted from now making the claim, the
[petitioner] bears the burden of demonstrating good
cause for having failed to raise the claim directly, and
he must show that he suffered actual prejudice as a
result of this excusable failure.’’ Hinds v. Commis-
sioner of Correction, 151 Conn. App. 837, 852, 97 A.3d
986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596 (2016).
This cause and prejudice test derives from Wainwright
v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594(1977), and has been held by our Supreme Court to be
‘‘the appropriate standard for reviewability in a habeas
corpus proceeding of constitutional claims not ade-
quately preserved at trial because of a procedural
default . . . .’’ Johnson v. Commissioner of Correc-
tion, 218 Conn. 403, 409, 589 A.2d 1214 (1991); see also
Jackson v. Commissioner of Correction, 227 Conn. 124,
132, 629 A.2d 413 (1993) (holding that ‘‘the Wainwright
cause and prejudice standard should be employed to
determine the reviewability of habeas claims that were
not properly pursued on direct appeal’’).
The habeas court explained that the record was suffi-
cient for the petitioner to raise his conflict claim on
direct appeal: ‘‘The petitioner . . . [argues] that this
matter required additional evidence to be developed
during an evidentiary hearing, which could not have
been accomplished on appeal. The petitioner’s focus
is misplaced. There is no question that an evidentiary
hearing could not have been held during the appeal.
However, there was an inquiry and a canvass regarding
this conflict of interest on the record. The question of
whether the canvass was legally sufficient, which the
petitioner attempts to turn into the ‘need’ for an eviden-
tiary hearing, is exactly what could have been chal-
lenged before the trial court or addressed by the Appel-
late Court, if the issue had been properly raised. . . .
The petitioner again attempts to turn his failure to offer
any prior challenge to a court ruling into a need for
additional factual findings for the first time by way of
collateral attack. If the trial court record was allegedly
inadequate for review, then the petitioner must bear
that burden because he has not offered any proof that
something external to the defense prohibited a chal-
lenge from being made, an additional canvass requested,
or from an appeal from being filed.’’ (Citation omitted.)
The petitioner argues again on appeal that the claim
could not be procedurally defaulted because the record
was inadequate to raise the claim on direct appeal.
Specifically, he contends that the testimony of Attorney
Wice at the habeas hearing that he had not been pre-
pared at the criminal trial for the cross-examination was
necessary to establish the claim. Although our Supreme
Court has stated that, ‘‘[a]lmost without exception, we
have required that a claim of ineffective assistance of
counsel must be raised by way of habeas corpus, rather
than by direct appeal, because of the need for a full
evidentiary record for such [a] claim’’; (internal quota-
tion marks omitted) State v. Crespo, 246 Conn. 665,
687–88, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125,
119 S. Ct. 911, 142 L. Ed. 2d 909 (1999); this rationale
does not apply to claims when the evidentiary record
was adequate for review on direct appeal. See McCarthy
v. Commissioner of Correction, 192 Conn. App. 797,
811–13, 218 A.3d 638 (2019) (freestanding due process
claim based on fabrication of evidence procedurally
defaulted because petitioner was aware of alleged fabri-
cation during criminal trial and at time of direct appeal).
In Crespo, our Supreme Court analyzed whether a
defendant could seek review, in a direct criminal appeal,
of a conflict of interest claim not raised at trial under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), and concluded that the record was inadequate
for a reviewing court to determine whether counsel’s
actions were the result of a legitimate trial strategy or
a possible conflict: ‘‘We cannot know for certain from
the record, however, whether [counsel’s actions consti-
tuted a legitimate trial strategy], nor can we determine
from the record whether [counsel] adequately explained
to the defendant any possible conflict, if one existed,
and obtained the defendant’s consent to his continued
representation. We may speculate regarding the diver-
gence of [counsel’s] and the defendant’s interests, but
there are no facts from which we may conclude, as a
matter of law, that a conflict actually existed. We have
recognized that the trial transcript seldom discloses all
of the considerations of strategy that may have induced
counsel to follow a particular course of action. . . . It
is because of this typical lack of an adequate record
that we ordinarily require a defendant to raise conflict
of interest claims in a habeas corpus proceeding. . . .
Although we cannot conclude with any degree of cer-
tainty from the record that the offer of the stipulation
was an actual conflict of interest, we are equally unable
to determine that it was not. Resolution of this issue,
therefore, must await the development of an adequate
factual record in an appropriate, posttrial proceeding.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Crespo, supra, 246 Conn. 693–
94. Similarly, in State v. Navarro, 172 Conn. App. 472,
489–92, 160 A.3d 1116, cert. denied, 326 Conn. 910, 164
A.3d 681 (2017), this court declined to review a conflict
of interest claim on direct appeal. We explained that,
when a defendant identifies only ‘‘several potential con-
flicts,’’ the record is inadequate to determine whether
counsel labored under a conflict of interest, as a suc-
cessful conflict of interest claim requires a showing of
an actual conflict of interest. (Emphasis in original.)
Id., 491.
The concerns highlighted in Crespo and Navarro are
not present in this case, the record of which contains
sufficient information for the conflict of interest claim
to have been reviewed on direct appeal. The record
reveals the exact nature of Attorney Daly’s conflict of
interest, and the canvass reveals that the court
explained to the petitioner that Attorney Daly would
have a ‘‘present conflict’’ if he were to cross-examine
Udolf and Rubino. In Collins v. Commissioner of Cor-
rection, 202 Conn. App. 789, 796, 799–800, 246 A.3d
1047, cert. denied, 336 Conn. 931, 248 A.3d 1 (2021),
this court held that a habeas court improperly found
that a conflict of interest claim was defaulted where
‘‘[counsel] never raised the potential for a conflict of
interest with the court, nor did the court raise the issue
on its own. As such, it was not until the habeas trial
itself that [counsel] explained on the record specifically
why’’ he proceeded with the course of action that was
claimed to have been tainted by the conflict of interest.
(Emphasis in original.) Id., 798. In the present case, the
record clearly establishes that Attorney Daly brought
the conflict to the court’s attention and explained the
nature of the conflict. The court then discussed the
conflict with the petitioner and acquired his assent to
proceed with Attorney Wice handling the cross-exami-
nation of Udolf and Rubino. The record also reveals
the immediate consequences of the apparent conflict,
that Attorney Wice handled the cross-examination of
Udolf and Rubino but ultimately asked no questions.
‘‘[T]he existence of cause for a procedural default
must ordinarily turn on whether the [petitioner] can
show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . . [For example] a showing that the
factual or legal basis for a claim was not reasonably
available to counsel . . . or . . . some interference by
officials . . . would constitute cause under this stan-
dard.’’ (Internal quotation marks omitted.) Johnson v.
Commissioner of Correction, supra, 285 Conn. 568. The
habeas court properly observed that the factual and
legal basis for this claim was apparent on the record
and, thus, available to counsel at the time of appeal.
Accordingly, the petitioner cannot establish good cause
for not raising the issue on direct appeal. The court
appropriately concluded that the claim was procedur-
ally defaulted.
B
The petitioner also claims that the habeas court
improperly found that he had waived his conflict of
interest claim regarding Attorney Daly. The respondent
argues that the court properly found that the petitioner’s
waiver was knowing and intelligent. We agree with the
respondent.
‘‘Where there is an actual or potential conflict . . .
the court must obtain a valid waiver from the defendant
if counsel is to continue to represent the defendant. A
valid waiver of a constitutional right . . . must be
knowing and intelligent, accomplished with sufficient
awareness of the relevant circumstances and likely con-
sequences. . . . [T]he fact that a defendant, with full
awareness of the circumstances and consequences of
the potential conflict, waives his right to the effective
assistance of counsel must appear on the record in
clear, unequivocal, unambiguous language.’’ (Internal
quotation marks omitted.) DaSilva v. Commissioner
of Correction, 132 Conn. App. 780, 790, 34 A.3d 429(2012). ‘‘If the defendant reveals that he is aware of
and understands the various risks and pitfalls, and that
he has the rational capacity to make a decision on the
basis of this information, and if he states clearly and
unequivocally . . . that he nevertheless chooses to
hazard [the] dangers of waiving conflict-free representa-
tion, then his waiver may appropriately be accepted.
. . . The waiver is not vitiated simply because the
defendant, with the benefit of hindsight, might have
chosen differently. A defendant need not be prescient
in order to waive knowingly and intelligently the right
to conflict-free representation.’’ (Citations omitted;
internal quotation marks omitted.) State v. Tilus, 157
Conn. App. 453, 467, 117 A.3d 920 (2015), appeal dis-
missed, 323 Conn. 784, 151 A.3d 382 (2016).
In concluding that the petitioner had waived his con-
flict of interest claim, the habeas court stated: ‘‘The
record in the present case reveals that, after being noti-
fied of the conflict and being provided with the opportu-
nity to discuss the matter with Attorney Daly, the peti-
tioner indicated to the court that he had discussed the
nature of the conflict with counsel, that he understood
it and the limitations that it placed on Attorney Daly,
that he understood the proposed resolution of having
Attorney Wice cross-examine the problematic wit-
nesses, and that he was willing to proceed with the
case. The waiver was adequate on its face, and the
petitioner has failed to provide any evidence to support
the allegation that he did not fully understand it or . . .
was otherwise unsure of his decision.’’ We agree with
the court. The record indicates that the petitioner and
Attorney Daly discussed the conflict during the recess,
the court explained that Attorney Daly could not ‘‘ade-
quately and fairly’’ cross-examine Udolf and Rubino as
a result of the conflict, and that the petitioner approved
of having Attorney Wice cross-examine the two wit-
nesses.
The petitioner argues that his waiver was premised
on cross-examination actually occurring, but neither
the trial record nor the habeas record reveals that the
petitioner was ever told cross-examination would occur
or that he instructed Attorney Wice to cross-examine
Udolf and Rubino. To the contrary, as the respondent
points out, the record indicates that the petitioner was
told that the plan was not to ask the witnesses any
questions. Indeed, with the exception of the petitioner’s
roommates, who heard about the incident at Pacifico
from the petitioner, none of the rebuttal witnesses who
testified about the incidents at the Prospect Café and
Pacifico was asked questions on cross-examination.
Furthermore, that the petitioner waived his conflict of
interest claim and approved of having Attorney Wice
handle the cross-examination of Udolf and Rubino does
not foreclose him from claiming that Attorney Wice’s
handling of those examinations was ineffective. We
address that claim in part III of this opinion.
In sum, the court properly concluded that the conflict
of interest claim was waived.
C
The petitioner also made a claim in a separate count
of his habeas petition that Attorney Daly’s conflict of
interest ‘‘prevented him from subjecting the state’s wit-
nesses to any meaningful cross-examination,’’ and, thus,
prejudice should have been presumed under United
States v. Cronic, supra, 466 U.S. 648. The habeas court
also determined that the petitioner’s Cronic claim was
procedurally defaulted, which the petitioner now dis-
putes.
The doctrine of procedural default is applicable to
Cronic claims that could have been raised on direct
appeal. See generally Taylor v. Commissioner of Cor-
rection, 324 Conn. 631, 153 A.3d 1264 (2017). Accord-
ingly, for the same reasons discussed previously, we
conclude that the habeas court correctly determined
that the petitioner’s Cronic claim was procedurally
defaulted, as it has a factual basis that is identical to
his conflict of interest claim.
III
The petitioner next claims that the habeas court
improperly denied his claim of ineffective assistance
as to Attorney Wice’s failure to cross-examine Udolf or
Rubino. The petitioner argues that Attorney Wice failed
to subject the state’s case to meaningful adversarial
testing, and, therefore, prejudice is presumed under
Cronic. The respondent argues that the court correctly
determined that the petitioner was not entitled to a
presumption of prejudice under Cronic. We agree with
the respondent.
We reiterate the legal principles set forth in part I
of this opinion, particularly that a claim of ineffective
assistance of counsel requires a showing that counsel’s
performance was both deficient and resulted in preju-
dice to the petitioner. See Vazquez v. Commissioner
of Correction, supra, 128 Conn. App. 430. ‘‘Strickland
recognized, however, that [i]n certain [s]ixth [a]mend-
ment contexts, prejudice is presumed. . . . In . . .
Cronic . . . which was decided on the same day as
Strickland, the United States Supreme Court elaborated
on the following three scenarios in which prejudice
may be presumed: (1) when counsel is denied to a
[petitioner] at a critical stage of the proceeding; (2)
when counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing; and (3) when
counsel is called upon to render assistance in a situation
in which no competent attorney could do so.’’ (Citation
omitted; internal quotation marks omitted.) Davis v.
Commissioner of Correction, 319 Conn. 548, 554–55,
126 A.3d 538 (2015), cert. denied sub nom. Semple v.
Davis, U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801(2016). ‘‘This is an irrebuttable presumption. See State
v. Frye, 224 Conn. 253, 262, 617 A.2d 1382 (1992) (right
to counsel is so basic that its violation mandates rever-
sal even if no particular prejudice is shown and even
if there is overwhelming evidence of guilt) . . . .’’
(Internal quotation marks omitted.) Newland v. Com-
missioner of Correction, 322 Conn. 664, 699–700, 142
A.3d 1095 (2016) (McDonald, J., dissenting). ‘‘[C]ourts
have rarely applied Cronic, emphasizing that only [non-
representation], not poor representation, triggers a pre-
sumption of prejudice.’’ (Internal quotation marks omit-
ted.) Hutton v. Commissioner of Correction, 102 Conn.
App. 845, 856, 928 A.2d 549, cert. denied, 284 Conn. 917,
931 A.2d 936 (2007). ‘‘The United States Supreme Court
has emphasized . . . how seldom circumstances arise
that justify a court in presuming prejudice, and concom-
itantly, in forgoing particularized inquiry into whether
a denial of counsel undermined the reliability of a judg-
ment . . . .’’ (Internal quotation marks omitted.) Leon
v. Commissioner of Correction, 189 Conn. App. 512,
531, 208 A.3d 296, cert. denied, 332 Conn. 909, 209 A.3d
1232 (2019). Our Supreme Court has further explained
that ‘‘specific errors in representation, for which coun-
sel can provide some reasonable explanation, are prop-
erly analyzed under Strickland. . . . Counsel’s com-
plete failure to advocate for a defendant, however, such
that no explanation could possibly justify such conduct,
warrants the application of Cronic.’’ (Citation omitted.)
Davis v. Commissioner of Correction, supra, 556.
The habeas court concluded that the petitioner was
not entitled to a presumption of prejudice under Cronic,
explaining that, ‘‘[u]nlike the Cronic line of cases, the
issue here does not deal with any witnesses in the state’s
case-in-chief; it only involves two of four witnesses who
testified to the same incident, and the evidence was
admitted only for a limited purpose of the credibility
[and] the overall accuracy of one of the defense experts’
opinion on the petitioner’s mental health, and as to the
credibility of inferences and testimony the petitioner
gave about his familiarity with handling guns. Given
the narrow issue involved, the fact that only two out
of the dozens of witnesses who testified in the case were
concerned, and the fact that the same or substantially
similar testimony from two other witnesses remains
unchallenged, this is not the type of issue that under-
mines the confidence in the fabric of the entire trial.’’
(Footnote omitted.)
We agree with the court that Attorney Wice’s actions
do not rise to a level that our jurisprudence dictates
would constitute a failure to subject the state’s case
to meaningful adversarial testing and thus require a
presumption of prejudice. The second Cronic exception
is exceedingly narrow. See Leon v. Commissioner of
Correction, supra, 189 Conn. App. 533; Hutton v. Com-
missioner of Correction, supra, 102 Conn. App. 856.
‘‘[T]he United States Supreme Court made clear . . .
that the second exception in Cronic applies only when
the attorney’s failure is complete, rather than simply
an alleged failure at specific points in the trial . . . .’’
Taylor v. Commissioner of Correction, supra, 324 Conn.
647 n.5. Even if we presume that it was error not to
cross-examine Udolf and Rubino, it cannot be said that
Attorney Wice’s failure was ‘‘complete.’’ As an example
of an ‘‘utter lack of advocacy,’’ in Edwards v. Commis-
sioner of Correction, 183 Conn. App. 838, 851, 194 A.3d
329 (2018), this court found that counsel’s actions had
resulted in a failure to subject the state’s case to any
meaningful adversarial testing. This court summarized,
stating that, ‘‘[a]lthough [counsel] claimed to have formed
a ‘theory of the case’—that the petitioner did not attack
the victim—he did nothing at the petitioner’s criminal
trial to advance that theory. The petitioner consistently
has claimed that he did not assault the victim. Despite
the petitioner’s adamance, [counsel] declined to cross-
examine any of the three people who were present at
the time of the assault. As noted previously, [counsel]
failed to meaningfully cross-examine any of the state’s
witnesses except for a police officer, whom he asked
irrelevant questions.’’ (Emphasis added.) Id., 850.
Here, the petitioner challenges only Attorney Wice’s
failure to cross-examine two of the state’s six rebuttal
witnesses. Our review of the record confirms that the
remainder of the state’s case was subjected to meaning-
ful adversarial testing. During the examination of the
lead police detective, Attorney Daly conducted multiple
voir dire examinations and objected frequently but did
not conduct a cross-examination. He then, again, con-
ducted multiple voir dire examinations during examina-
tion of the second police detective and conducted a
cross-examination. He cross-examined the first law
enforcement officers who responded to the crime
scene, the state’s medical and firearms experts, and the
majority of the state’s lay witnesses, including patrons
and employees of the Prospect Café. Furthermore,
Attorney Daly called four defense witnesses, including
members of the petitioner’s family and Dr. Opsahl.
Thus, the state’s case was subjected to meaningful
adversarial testing.
Accordingly, Attorney Wice’s alleged failures are
more appropriately analyzed under the performance
and prejudice test outlined in Strickland. Because, how-
ever, the petitioner does not challenge on appeal the
habeas court’s determination that he failed to establish
prejudice under Strickland, no additional analysis is
necessary.15 In fact, the petitioner explicitly stated in
his brief to this court that ‘‘[h]is claim should not be
analyzed for prejudice under Strickland.’’ We agree
with the habeas court that Cronic does not apply to
the petitioner’s claim; thus, the petitioner was required
to prove prejudice, and the habeas court’s finding of
no prejudice stands unchallenged. The habeas court
correctly denied the petitioner’s ineffective assistance
of counsel claim.
IV
Last, the petitioner contends that the habeas court
improperly declined to apply a cumulative prejudice
approach to his claims and to consider the aggregate
effect of counsel’s alleged errors. The respondent
argues that Connecticut state courts have declined to
adopt a cumulative error approach and that, regardless,
because the petitioner failed to demonstrate that coun-
sel acted deficiently, there are no errors to accumulate.
We agree with the respondent.
‘‘Our appellate courts . . . have consistently
declined to adopt this [cumulative error analysis]. When
faced with the assertion that the claims of error, none
of which individually constituted error, should be aggre-
gated to form a separate basis for a claim of a constitu-
tional violation of a right to a fair trial, our Supreme
Court has repeatedly decline[d] to create a new consti-
tutional claim in which the totality of alleged constitu-
tional error is greater than the sum of its parts. . . .
Because it is not within the province of this court to
reevaluate decisions of our Supreme Court . . . we
lack authority under the current state of our case law
to analyze the petitioner’s ineffective assistance claims
under the cumulative error rule.’’ (Citations omitted;
internal quotation marks omitted.) Cooke v. Commis-
sioner of Correction, 194 Conn. App. 807, 819, 222 A.3d
1000 (2019), cert. denied, 335 Conn. 911, 228 A.3d 1041(2020). We cannot grant the relief the petitioner seeks.
Moreover, the habeas court concluded that, because
‘‘the petitioner has failed to prove each of the individual
claim[s] upon which this final ‘catchall’ claim rests, it
is not necessary to engage in any additional detailed
discussion. [Because] all other claims have failed on
their individual merits, this claim, too, fails.’’ Thus, even
if aggregate error analysis were viable here, it is not
necessary to consider the aggregate effect of the alleged
errors because we agree with the habeas court’s disposi-
tion of the petitioner’s individual claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner concedes that the state ‘‘presented undisputed evidence
that the petitioner fatally shot the victim at [the] Prospect Café in [West]
Hartford on March 22, 1987.’’
2
The parties stipulated that Attorney Daly died on April 4, 2002. His file
from the criminal trial could not be located.
3
The petitioner also asserts in the introductory portion of his ineffective
assistance of counsel argument in his brief that his rights under article first,
§§ 8 and 9, of the constitution of Connecticut were violated. However,
beyond that cursory assertion, the petitioner’s brief does not contain any
substantive analysis of potential Connecticut constitutional violations.
Accordingly, we decline to review these claims. See State v. Buhl, 321 Conn.
688, 724, 138 A.3d 868 (2016) (‘‘We repeatedly have stated that [w]e are not
required to review issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than mere abstract asser-
tion, is required in order to avoid abandoning an issue by failure to brief
the issue properly.’’ (Internal quotation marks omitted.)); see also Whistnant
v. Commissioner of Correction, 199 Conn. App. 406, 420 n.13, 236 A.3d 276,
cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).
4
Dr. Opsahl defined dissociative state as ‘‘a technical term used to describe
when a person essentially loses control of the person they are and becomes
someone else or goes somewhere else in mental terms.’’
5
Dr. Zeman defined ‘‘blocking of thought, thought disorder, and delusional
thinking [as] all terms which describe a psychotic state of mind in which
somebody who’s extremely out of touch with reality on the basis, for exam-
ple, of a psychotic illness such as schizophrenia, will have a jumbling of
his or her thinking, thoughts will be confused, jumbled, out of order or
there may be long periods of what are called blocking of thought where
there’s lapses of thought as if somebody’s thoughts have just shut off and
then start up again. I saw—I saw no evidence of that in my evaluation of
[the petitioner].’’
6
The affirmative defense of mental disease or defect is a defense in ‘‘any
prosecution for an offense’’ and provides that ‘‘it shall be an affirmative
defense that the defendant, at the time the defendant committed the pro-
scribed act or acts, lacked substantial capacity, as a result of mental disease
or defect, either to appreciate the wrongfulness of his conduct or to control
his conduct within the requirements of the law.’’ General Statutes § 53a-
13 (a).
Extreme emotional disturbance is an affirmative defense to murder, which
is set forth in the applicable statute defining murder: ‘‘Evidence that the
defendant suffered from a mental disease, mental 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 intent to cause
the death of another person.’’ General Statutes § 53a-54a (b).
7
‘‘A person is guilty of manslaughter in the first degree when: (1) With
intent to cause serious physical injury to another person, he causes the
death of such person or of a third person; or (2) with intent to cause the
death of another person, he causes the death of such person or of a third
person under circumstances which do not constitute murder because he
committed the proscribed act or acts under the influence of extreme emo-
tional disturbance, as provided in subsection (a) of section 53a-54a, except
that the fact that homicide was committed under the influence of extreme
emotional disturbance constitutes a mitigating circumstance reducing mur-
der to manslaughter in the first degree and need not be proved in any
prosecution initiated under this subsection; or (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’ General Statutes § 53a-55 (a).
‘‘A person is guilty of manslaughter in the second degree when: (1) He
recklessly causes the death of another person; or (2) he intentionally causes
or aids another person, other than by force, duress or deception, to commit
suicide.’’ General Statutes § 53a-56 (a).
‘‘A person is guilty of criminally negligent homicide when, with criminal
negligence, he causes the death of another person, except where the defen-
dant caused such death by a motor vehicle.’’ General Statutes § 53a-58 (a).
8
During closing argument, Attorney Daly stated: ‘‘There’s nobody in that
jury box in this courtroom any unhappier than I am about the prospect of
people such as [the petitioner] walking around with that weapon in their
belt. I’m not justifying his having done it; I’m explaining to you why he did
it . . . I’m trying to tell you he did it for some reason other than downright
meanness. He did it . . . [because] it was the only way, the only—his only
link with security. It’s the only way he could feel secure.’’ Attorney Daly
further stated: ‘‘I respectfully suggest to you that the only person who would
get all upset about it, who would eventually draw his gun, is somebody who
was suffering from a mental disease or a defect of such a character as to
destroy the control mechanisms in his mind. And when those mechanisms
got interfered with, he took the loaded gun [out] of his pocket and it went off.’’
9
The trial court instructed the jury: ‘‘If you find that the state has failed
to prove to you beyond a reasonable doubt any one of these elements, then
you must find the [petitioner] not guilty of murder. If you find that the state
has convinced you of each of these elements beyond a reasonable doubt,
you must then consider the two affirmative defenses the [petitioner] has
raised in this case. . . . The burden that the [petitioner] has as to the
affirmative defense . . . does not diminish in any way the burden that
the state has of proving his intent, whether it be the general intent or
specific intent.’’
10
The court instructed the jury as follows: ‘‘Now, you’ll probably note
that the state did not offer this in its direct case. And there is a reason for
that. The law prohibits the state from offering past misconduct to show a
propensity for doing misconduct. . . . Even with the admission of this
evidence, you are not permitted to use that evidence in that way. The
evidence is being admitted for two purposes. The first is that, what was
admitted in the defense case was certain history of the [petitioner], particu-
larly the event of February, 1986, in which he was—his bedroom door was
alleged to have been kicked in and that he was threatened by an individual
. . . . And [Dr. Opsahl] had given an opinion on the basis of that history
that his purchase of guns and his use [of them] as in this particular case
resulted in a loss of control or behavior. And from the standpoint that that
event [in] February continued to come back and he was reenacting that
event. So, it’s allowed for the state, then, once that’s offered, to show
evidence whether or not there has been, on prior occasions, loss of control
or behavior. So, this evidence . . . is to be used by you to determine whether
or not . . . Dr. Opsahl’s opinion or diagnosis was based on factual matters.
And, secondly, whether or not the [petitioner] has been truthful to the doctor
in relating events and truthful with you in relating events.’’
11
The petitioner asserts in the introductory portion of his conflict of
interest argument in his brief that his rights under article first, §§ 8 and 9,
of the constitution of Connecticut were violated. For the same reasons set
forth in footnote 3 of this opinion, we decline to review these claims.
12
The petitioner challenged the denial of the pro hac vice motion in count
one of the operative habeas petition. The habeas court concluded that the
claim was procedurally defaulted. The petitioner has not challenged this
ruling on appeal.
13
Higby was the petitioner’s roommate at the time of these events. He
was present at the Prospect Café during the confrontation in October, 1986,
but heard from the petitioner about the second incident at issue, which
occurred at the Pacifico Bar and Restaurant in West Hartford on January
23, 1987.
14
See footnote 10 of this opinion.
15
After resolving the Cronic claim, the habeas court resolved the petition-
er’s Strickland claim by concluding that the petitioner had failed to establish
prejudice, concluding: ‘‘[T]he petitioner would need to show some actual
harm . . . . Here, the petitioner failed to present Rubino or Udolf as wit-
nesses to prove the allegedly helpful information that could have, or should
have, been elicited form them via cross-examination, which, alone is suffi-
cient to defeat his claim. . . . An additional basis is that [McCurry] and
[Higby] were two additional witnesses who testified about the same incident
. . . during the offer of proof and before the jury. Neither of them was
subjected to any cross-examination during either proceeding, and the peti-
tioner offers no challenges at all to the testimony or handling of either
witness. Therefore, even if some challenge to the credibility of Udolf or
Rubino had been offered, the testimony of these other two witnesses would
have gone to the jury unchallenged. Therefore, the petitioner’s claim fails
because he has failed to show any harm . . . .’’ (Citations omitted.)