Nicholson v. Commissioner of Correction , 186 Conn. App. 398 ( 2018 )

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CARGIL NICHOLSON v. COMMISSIONER OF
CORRECTION
(AC 40101)
Sheldon, Moll and Mihalakos, Js.
Syllabus
The petitioner, who previously had been convicted of manslaughter in the
first degree in connection with his conduct in stabbing the victim during
an altercation, sought a writ of habeas corpus. He claimed that his
trial counsel rendered ineffective assistance by failing to present the
testimony of an expert witness, M, a forensic toxicologist, to support
his justification defense by offering testimony as to the presence and
effects of certain drugs found in the victim’s system, which he claimed
was necessary to lay a foundation for the admission of the victim’s
toxicology report into evidence. M testified at the habeas trial as to his
qualifications as an expert in the field of toxicology, as well as the
general effects of the drugs found in the victim’s system, but the court
declined to treat M as an expert witness on the ground that the petitioner
did not make an express offer to the court to accept M as an expert
witness. The court rendered judgment denying the habeas petition in
an oral decision in which it stated that it had not reviewed certain
transcripts of the criminal trial that had been admitted at the habeas
trial. Subsequently, the habeas court denied the petition for certification
to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, the petitioner having failed to show that his
claims were debatable among jurists of reason, that a court could have
resolved the issues in a different manner, or that the questions were
adequate to deserve encouragement to proceed further.
2. The petitioner could not prevail on his claim that his trial counsel rendered
ineffective assistance by failing to call an expert witness to testify about
the presence and effects of the drugs in the victim’s system; trial counsel
having testified at the habeas trial that he had consulted with various
experts regarding the toxicology report but that none of them offered an
opinion favorable to the petitioner’s justification defense, trial counsel’s
decision not to retain an expert constituted a reasonable tactical deci-
sion, and the habeas court’s finding that trial counsel had contacted
various experts, none of whom provided him with an opinion favorable
to the petitioner’s justification defense, was not clearly erroneous, as
the evidence adduced at the habeas trial did not establish that trial
counsel was aware of or had ever consulted with M, whom the petitioner
claimed would have provided an opinion at the criminal trial favorable
to his justification defense.
3. The petitioner’s claim that the habeas court abused its discretion in
declining to treat M as an expert witness at the habeas trial was unavail-
ing; although that court erred in declining to treat M as an expert witness,
as the petitioner disclosed M as an expert prior to trial and elicited
sufficient testimony from M establishing his qualifications to testify as
an expert witness, without objection, and the applicable provision (§ 7-
2) of the Connecticut Code of Evidence did not require an explicit offer
and acceptance of M as an expert in order for M to be treated as an
expert witness, the petitioner nevertheless failed to demonstrate that
the court’s error was harmful because even if the court had treated M’s
testimony regarding the presence and effect of the drugs in the victim’s
system as expert testimony, that testimony was immaterial to its determi-
nation that trial counsel’s performance was not deficient.
4. The habeas court did not abuse its discretion in denying the petition for
certification to appeal as to the petitioner’s claim that the court improp-
erly failed to review certain evidence admitted at the habeas trial prior
to denying the habeas petition; that court was not required to review
the entire criminal transcript before rendering its oral decision denying
the habeas petition, as the petitioner’s claim focused solely on trial
counsel’s failure to call an expert witness to testify as to the presence
and effects of the drugs in the victim’s system, the excerpts from the
criminal trial transcripts identified by the petitioner had no bearing on
the court’s analysis of whether counsel’s performance was deficient,
and the petitioner failed to identify any excerpts from the criminal
trial transcripts that would have altered the court’s determination that
counsel’s performance was not deficient.
Argued September 11—officially released December 4, 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 appel-
lant (petitioner).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Emily D. Trudeau, assistant state’s attorney,
for the appellee (respondent).
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 deny-
ing his petition for certification to appeal, (2) errone-
ously concluded that he failed to establish that his state
and federal constitutional rights to the effective assis-
tance of counsel were violated,1 (3) abused its discre-
tion 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 pro-
cedural history are relevant to our disposition of the
petitioner’s claims.2 ‘‘On March 13, 2012, at approxi-
mately 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 cut-
ting 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 [peti-
tioner] to turn down the music. The victim was approxi-
mately fifty years old, weighed approximately 156
pounds, and was five feet, nine inches tall. The [peti-
tioner], 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 [peti-
tioner], 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 sec-
onds, and when the victim staggered out of the [petition-
er’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 passen-
ger’s seat. The victim told Vena, ‘He stabbed me.’ Vena
then called 911 and drove to the Main Street intersec-
tion, 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 medica-
tions. The petitioner’s criminal defense counsel, Jona-
than 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 testi-
mony from the victim’s wife about the victim’s medica-
tions 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 medi-
cations constituted inadmissible character evidence.
Following argument, the court stated: ‘‘I think the con-
nection 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 out-
side 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 pro-
vide 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 specu-
late 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 him-
self, 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 peti-
tioner 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 certifica-
tion 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 certifica-
tion 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 certifica-
tion to appeal. In Simms v. Warden, 229 Conn. 178,
187, 640 A.2d 601 (1994), [our Supreme Court] con-
cluded that . . . [General Statutes] § 52-470 (b) pre-
vents 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] incor-
porated 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 appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent 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 dem-
onstrate 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (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 habeas court did not abuse its discre-
tion in denying the petition for certification to appeal.
II
We now turn to the petitioner’s substantive claims
on appeal. The petitioner’s first substantive claim is
that the habeas court erroneously concluded that he
failed to establish that Demirjian rendered ineffective
assistance. Specifically, the petitioner asserts that
Demirjian rendered deficient performance by failing to
call an expert witness, namely, Dr. Milzoff, during the
petitioner’s case-in-chief at the criminal trial to support
the petitioner’s justification defense by offering testi-
mony as to the presence and effects of the drugs found
in the victim’s system. We disagree.
We begin by setting forth the relevant standard of
review and legal principles that govern our review of
the petitioner’s claim. ‘‘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 find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review. . . .
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S. 668,
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. . . . As
enunciated in Strickland v. Washington, supra, [687],
this court has stated: It is axiomatic that the right to
counsel is the right to the effective assistance of coun-
sel. . . . A claim of ineffective assistance of counsel
consists of two components: [1] a performance prong
and [2] a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, [the peti-
tioner] must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
. . . The [petitioner’s] claim will succeed only if both
prongs are satisfied. . . . The court, however, can find
against a petitioner . . . on either the performance
prong or the prejudice prong, whichever is easier.’’
(Citation omitted; internal quotation marks omitted.)
Chance v. Commissioner of Correction, 184 Conn. App.
524, 533–34, A.3d , cert. denied, 330 Conn. 934,
A.3d (2018).
The following additional facts and procedural history
are relevant to the petitioner’s claim. At the habeas
trial, the petitioner called Dr. Milzoff as his first witness.
Dr. Milzoff testified that the victim’s toxicology report
indicated that several drugs, including methadone, mor-
phine, and Prozac, were found in the victim’s system
at the time of his death. He further provided testimony
explaining the general effects of those drugs. He did
not offer any testimony concerning whether Demirjian
had contacted him around the time of the criminal trial
to discuss the victim’s toxicology report.
The petitioner next called Demirjian as a witness,
who testified as follows. He reviewed the victim’s toxi-
cology report before the criminal trial. He intended to
cross-examine Dr. Carver about the drugs found in the
victim’s system, but the trial court precluded him from
questioning Dr. Carver on that subject. In addition,
Demirjian contacted two or three unidentified experts
(whom he referred to as ‘‘drug people’’) to review the
victim’s toxicology report, but none of those individuals
offered opinions supporting his argument that the drugs
found in the victim’s system increased the victim’s
aggression, which would have bolstered the petitioner’s
justification defense. Such experts informed him that
methadone, one of the drugs found in the victim’s sys-
tem, had a calming effect. On the basis of the experts’
unfavorable opinions, Demirjian decided not to retain
an expert to testify during the petitioner’s case-in-chief
about the presence and effects of the drugs found in
the victim’s system.
During redirect examination, the petitioner asked
Demirjian whether he had contacted Dr. Milzoff to
review the victim’s toxicology report. The petitioner
directed Demirjian to an excerpt from the criminal trial
transcripts, which had been admitted into evidence at
the habeas trial. The excerpt reflected that the state, in
objecting to Demirjian’s attempt to question Dr. Carver
about the victim’s toxicology report during cross-exami-
nation, argued that Demirjian had not represented that
he had retained an expert to testify about the effects
of the drugs found in the victim’s system, although the
state noted that ‘‘we heard mention of Dr. [Milzoff]
some time ago, [but] we’ve heard nothing else, we’ve
got no report from him.’’ After reviewing the excerpt
and his personal file, Demirjian testified that Dr. Milzoff
may have been mentioned during the criminal trial, but
he could not recall whether he had contacted Dr.
Milzoff.
In denying the petitioner’s amended petition for a
writ of habeas corpus, the habeas court determined
that the petitioner failed to establish that Demirjian’s
performance was deficient. The court stated in relevant
part: ‘‘Demirjian’s testimony is that he explored the
question of whether the toxicology report would lend
credence to [the petitioner’s] argument that this man-
slaughter was committed as self-defense. . . . Demirji-
an’s testimony, stated in conclusory terms, was that
none of the persons with whom he consulted were
able to give him any information that would have been
helpful in supporting the defense of self-defense. If any-
thing, according to . . . Demirjian, the drugs con-
tained within the tox report – toxicology report would
have had a calming effect upon the victim rather than
an agitating effect. . . . In this case it is clear that,
number one, . . . Demirjian had the toxicology report.
Number two, he investigated as to whether it would be
of value in assisting [the petitioner] in his self-defense
defense. Number three, he concluded, based upon his
research and consultation with various people – various
experts – that it would be of no value. Consequently,
he didn’t feel that it was worthwhile pursuing. And even
if he had, the state had filed a motion in limine to
prevent the admission of the tox report. I simply don’t
see any deficient performance on the part of Attorney
Demirjian in this case.’’ The court further determined
that, even if Demirjian’s performance had been defi-
cient, the petitioner failed to demonstrate that he had
been prejudiced by Demirjian’s deficient performance.
On appeal, the petitioner claims that Demirjian’s fail-
ure to call Dr. Milzoff, of whom, the petitioner contends,
Demirjian was aware and with whom Demirjian had
consulted around the time of the criminal trial, consti-
tuted deficient performance.6 The petitioner further
asserts that, had Demirjian retained Dr. Milzoff as an
expert witness, Dr. Milzoff would have aided the peti-
tioner’s justification defense by testifying that the drugs
found in the victim’s system could have increased the
victim’s pain threshold, irritability, and agitation during
the altercation with the petitioner. In response, the
respondent, the Commissioner of Correction, argues,
inter alia, that Demirjian made a reasonable strategic
decision not to call an expert witness because Demirjian
received opinions from several experts that were not
favorable to the petitioner’s justification defense. We
agree with the respondent.
‘‘To prove his or her entitlement to relief pursuant
to Strickland, a petitioner must first satisfy what the
courts refer to as the performance prong; this requires
that the petitioner demonstrate that his or her counsel’s
assistance was, in fact, ineffective in that counsel’s per-
formance was deficient. To establish that there was
deficient performance by the petitioner’s counsel, the
petitioner must show that counsel’s representation fell
below an objective standard of reasonableness. . . . A
reviewing court must view counsel’s conduct with a
strong presumption that it falls within the wide range
of reasonable professional assistance. . . . The range
of competence demanded is reasonably competent, or
within the range of competence displayed by lawyers
with ordinary training and skill in the criminal law. . . .
‘‘[J]udicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion 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 omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . In recon-
structing the circumstances, a reviewing court is
required not simply to give [the trial attorney] the bene-
fit of the doubt . . . but to affirmatively entertain the
range of possible reasons . . . counsel may have had
for proceeding as [he] did . . . .’’ (Citations omitted;
internal quotation marks omitted.) Spearman v. Com-
missioner of Correction, 164 Conn. App. 530, 538–39,
138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d
284 (2016).
‘‘As this court previously has observed, ‘[a] trial attor-
ney is entitled to rely reasonably on the opinion of an
expert witness . . . and is not required to continue
searching for a different expert.’ . . . Stephen S. v.
Commissioner of Correction, 134 Conn. App. 801, 816,
40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660
(2012). Moreover, it is well established that when a
criminal defense attorney consults with ‘an expert in a
relevant field’ who thereafter apprises counsel that he
or she cannot provide favorable testimony, counsel is
‘entitled to rely reasonably on [that] opinion . . . and
[is] not required to continue searching for a different
expert.’ Id., 817; see also Brian S. v. Commissioner of
Correction, 172 Conn. App. 535, 544, 160 A.3d 1110
(‘[t]he fact that the petitioner later was able to present
testimony at his habeas trial from . . . a different
expert, perhaps more specialized than [the expert origi-
nally consulted by his criminal trial counsel] . . . did
not establish that counsel’s performance was deficient
for relying on [the original] expert opinion in prepara-
tion for the petitioner’s criminal trial’), cert. denied, 326
Conn. 904, 163 A.3d 1204 (2017).
‘‘As the United States Supreme Court has explained in
the context of ineffective assistance of counsel claims,
‘[t]he selection of an expert witness is a paradigmatic
example of the type of ‘‘strategic choic[e]’’ that, when
made ‘‘after thorough investigation of [the] law and
facts,’’ is ‘‘virtually unchallengeable.’’ ’ [Hinton v. Ala-
bama, 571 U.S. 263, 275, 134 S. Ct. 1081, 188 L. Ed. 2d
1 (2014)]; accord Brian S. v. Commissioner of Correc-
tion, supra, 172 Conn. App. 543–44 (rejecting claim
of deficient performance when trial counsel consulted
with expert, made strategic decision not to present his
testimony at trial or to seek another opinion, and ‘stra-
tegized that the best course of action’ was alternate
theory of defense); Bharrat v. Commissioner of Correc-
tion, 167 Conn. App. 158, 170, 143 A.3d 1106 (rejecting
claim of deficient performance when trial counsel con-
sulted with expert but ultimately ‘made the reasonable,
strategic decision not to call an expert witness at the
underlying criminal trial’), cert. denied, 323 Conn. 924,
149 A.3d 982 (2016); Stephen S. v. Commissioner of
Correction, supra, 134 Conn. App. 817 (emphasizing
that ‘trial counsel is entitled to make strategic choices
in preparation for trial’).’’ Weaving v. Commissioner
of Correction, 178 Conn. App. 658, 668–70, 179 A.3d
1272 (2017).
In the present case, the habeas court found that
Demirjian, after having consulted with various experts,
concluded that the victim’s toxicology report would be
of no value to the petitioner’s justification defense at the
criminal trial. Under those circumstances, Demirjian’s
decision not to retain an expert constituted a reasonable
tactical decision. See Arroyo v. Commissioner of Cor-
rection, 172 Conn. App. 442, 468, 160 A.3d 425 (counsel’s
decision not to retain expert was reasonable tactical
decision where counsel had consulted with multiple
experts, none of whom provided favorable opinions),
cert. denied, 326 Conn. 921, 169 A.3d 235 (2017).
Nevertheless, the petitioner appears to claim that the
habeas court’s finding that Demirjian had contacted
various experts, none of whom provided him with opin-
ions that supported the petitioner’s justification
defense, was clearly erroneous. According to the peti-
tioner, the record reflects that Demirjian was aware of
and had consulted with Dr. Milzoff around the time of
the criminal trial. We disagree. Demirjian testified that
Dr. Milzoff may have been mentioned during the crimi-
nal trial, but he could not recall whether he had con-
tacted Dr. Milzoff. Demirjian’s testimony does not
reflect that Dr. Milzoff was known to him as a potential
expert or that he had consulted with Dr. Milzoff around
the time of the criminal trial.7 Further, Dr. Milzoff’s
testimony is silent as to whether he had communicated
with Demirjian. Thus, we cannot conclude that the
court’s finding was clearly erroneous.
In sum, we conclude that the habeas court properly
determined that the petitioner failed to establish that
Demirjian’s performance was deficient and, therefore,
the court did not abuse its discretion in denying the
petitioner’s petition for certification to appeal as to the
ineffective assistance of counsel claim.
III
The petitioner’s next substantive claim is that the
habeas court abused its discretion in declining to treat
Dr. Milzoff as an expert witness at the habeas trial.
Specifically, the petitioner asserts that the court errone-
ously concluded that he was required to offer, and the
court was required to accept, Dr. Milzoff as an expert
witness as a prerequisite to the court treating Dr. Milzoff
as an expert witness. The petitioner further asserts that
the court’s error was harmful. We agree with the peti-
tioner that the court committed error, but we conclude
that the petitioner has failed to demonstrate that the
error was harmful.
The following standard of review and legal principles
govern our review of the petitioner’s claim. ‘‘[T]he trial
court has wide discretion in ruling on the admissibility
of expert testimony and, unless that discretion has been
abused or the ruling involves a clear misconception of
the law, the trial court’s decision will not be disturbed.
. . . Expert testimony should be admitted when: (1)
the witness has a special skill or knowledge directly
applicable to a matter in issue, (2) that skill or knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury in
considering the issues. . . . In other words, [i]n order
to render an expert opinion the witness must be quali-
fied to do so and there must be a factual basis for the
opinion. . . . It is well settled that [t]he true test of
the admissibility of [expert] testimony is not whether
the subject matter is common or uncommon, or
whether many persons or few have some knowledge
of the matter; but it is whether the witnesses offered
as experts have any peculiar knowledge or experience,
not common to the world, which renders their opinions
founded on such knowledge or experience any aid to
the court or the jury in determining the questions at
issue.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rivera, 169 Conn. App. 343, 368–69,
150 A.3d 244 (2016), cert. denied, 324 Conn. 905, 152
A.3d 544 (2017).
The following additional facts and procedural history
are relevant to our resolution of this claim. On Novem-
ber 29, 2016, the petitioner filed with the habeas court
a disclosure indicating that he intended to call Dr. Mil-
zoff as an expert witness at the habeas trial. During the
habeas trial, Dr. Milzoff offered testimony regarding his
qualifications as an expert in the field of toxicology.8
He then testified as follows. On the basis of his review
of the victim’s toxicology report, he discovered that
certain drugs, including methadone, morphine, and Pro-
zac, were in the victim’s system at the time of the vic-
tim’s death. He explained that morphine either is
administered directly as a pain reliever analgesic or is
a metabolite of heroin, that some individuals exhibit
aggressive tendencies when exposed to morphine, that
side effects of Prozac include irritability, agitation, and
panic attacks, and that methadone and morphine
increase an individual’s pain threshold. Although he
could explain the general effects of those drugs, he
could not provide an opinion as to how those drugs
affected the victim individually.
In denying the petitioner’s amended petition for a
writ of habeas corpus, the habeas court stated in rele-
vant part: ‘‘First, this court is singularly unimpressed
with the testimony of Dr. Milzoff. He did come in and
testify as to some qualifications and alluded to the fact
that he had been used as an expert witness numerous
times in the past. But I will note that at no time did the
petitioner move to have this court accept Dr. Milzoff
as an expert witness.’’ Citing § 7-2 of the Connecticut
Code of Evidence and its accompanying commentary,
the court then concluded that ‘‘it does seem implied
that in order to be accepted as an expert witness – or
treated as an expert witness – such a witness must be
offered and accepted by the court as an expert. Well,
that wasn’t done here. That doesn’t mean that the evi-
dence presented by Dr. Milzoff is not in the record of
this court. But this court does not have to recognize
Dr. Milzoff as any sort of expert. So, with that comment,
Dr. Milzoff’s testimony was not persuasive.’’
Notwithstanding the foregoing observations, the
habeas court proceeded to address the substance of
Dr. Milzoff’s testimony. With respect to Dr. Milzoff’s
testimony that morphine was a metabolite of heroin,
the court stated that the victim’s autopsy report indi-
cated that the victim had received emergency medical
treatment and that, as an alternative explanation for
the presence of morphine in his system, the victim may
have been administered morphine in conjunction with
the treatment.
The court then commented that the record before it
was ‘‘weak to the point of being nonexistent.’’ Proceed-
ing to address Dr. Milzoff’s testimony that Prozac pro-
duced irritability and violent behavior, the court stated
that it was ‘‘more or less common knowledge’’ that
Prozac is commonly prescribed, particularly to treat
depression, and that the court would have ‘‘found it to
be far more beneficial to have a little more expert – a
little more – I shouldn’t say more – a little expert testi-
mony as to the effects of Prozac.’’ The court later stated
that there was ‘‘little basis’’ for it to determine whether
the levels of methadone, Prozac, and the other sub-
stances in the victim’s system were abnormally high.
On appeal, the petitioner claims that the habeas court
erroneously declined to treat Dr. Milzoff as an expert
witness on the sole ground that the petitioner did not
make an express offer to the court to accept Dr. Milzoff
as an expert witness. The petitioner asserts that Dr.
Milzoff provided adequate testimony establishing his
qualifications to testify as an expert witness, to which
the respondent did not object, and that the court’s
refusal to qualify Dr. Milzoff as an expert witness had
no nexus to Dr. Milzoff’s knowledge or experience.
The petitioner further asserts that the court’s error was
harmful because Dr. Milzoff’s testimony at the habeas
trial, if treated as expert testimony, would have estab-
lished that an expert could have testified at the criminal
trial in support of the petitioner’s justification defense.
Although we agree with the petitioner that the court
erred in declining to treat Dr. Milzoff as an expert wit-
ness in this case, we conclude that the petitioner has
failed to demonstrate that the court’s error was
harmful.9
The habeas court concluded that § 7-2 of the Connect-
icut Code of Evidence required the petitioner to offer,
and the court to accept, Dr. Milzoff as an expert witness
as a prerequisite to the court treating Dr. Milzoff as an
expert witness. Section 7-2 provides: ‘‘A witness quali-
fied as an expert by knowledge, skill, experience, train-
ing, education or otherwise may testify in the form of
an opinion or otherwise concerning scientific, technical
or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or
in determining a fact in issue.’’ The court also relied
on the commentary to § 7-2 (2009), which was in effect
at the time of its judgment and provided in relevant
part: ‘‘Section 7-2 imposes two conditions on the admis-
sibility of expert testimony. First, the witness must be
qualified as an expert. . . . Whether a witness is suffi-
ciently qualified to testify as an expert depends on
whether, by virtue of the witness’ knowledge, skill,
experience, etc., his or her testimony will ‘assist’ the
trier of fact. . . . The sufficiency of an expert witness’
qualifications is a preliminary question for the court.
. . . Second, the expert witness’ testimony must assist
the trier of fact in understanding the evidence or
determining a fact in issue. . . . Crucial to this inquiry
is a determination that the scientific, technical or spe-
cialized knowledge upon which the expert’s testimony
is based goes beyond the common knowledge and com-
prehension, i.e., ‘beyond the average ken’ of the average
juror.’’ (Citations omitted.)10
We do not construe § 7-2 of the Connecticut Code of
Evidence and its accompanying commentary, either in
effect at the time of the habeas court’s judgment or
presently, to require an explicit offer and acceptance
of a witness as an expert in order for the witness to
be treated as an expert witness. To qualify a witness
as an expert, a party is ‘‘required to demonstrate that
[the witness] ha[s] the special skill or knowledge
directly applicable to a matter in issue . . . that [the
witness’] skill or knowledge is not common to the aver-
age person, and [that the witness’] testimony would be
helpful to the court or jury in considering the issues.’’
(Internal quotation marks omitted.) Forte v. Citicorp
Mortgage, Inc., 90 Conn. App. 727, 735–36, 881 A.2d
386 (2005). ‘‘Although a court may decide to [declare
a witness to be an expert] after an expert’s qualifications
are put on record, it is not required to do so by our
rules of practice or case law. If [an opposing party] has
an objection to the testimony or expression of opinion
by such a witness, he has the opportunity to make it
and have the court rule on it.’’ (Footnote omitted.) State
v. Heriberto M., 116 Conn. App. 635, 645, 976 A.2d 804,
cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). In
the present case, the petitioner disclosed Dr. Milzoff as
an expert prior to trial and elicited testimony from Dr.
Milzoff establishing Dr. Milzoff’s qualifications to testify
as an expert witness. The respondent did not object to
Dr. Milzoff’s testimony. Under these circumstances, the
court’s refusal to treat Dr. Milzoff as an expert witness
constituted error.
Notwithstanding the foregoing, we conclude that the
petitioner has failed to demonstrate that the error was
harmful. ‘‘[T]he harmless error standard in a civil case
is whether the improper ruling would likely affect the
result. . . . Generally, a trial court’s ruling will result
in a new trial only if the ruling was both wrong and
harmful. . . . A petition for a writ of habeas corpus is
a civil action . . . therefore, in order to prevail, the
petitioner must be able to satisfy the harmless error
standard.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Gonzalez v. Com-
missioner of Correction, 127 Conn. App. 454, 460, 14
A.3d 1053, cert. denied, 302 Conn. 933, 28 A.3d 991
(2011). In the present case, the court determined that
the petitioner failed to establish that Demirjian ren-
dered deficient performance where Demirjian, after
having consulted with several experts, concluded that
the victim’s toxicology report was of no value to the
petitioner’s justification defense at the criminal trial.
Even if the court had treated Dr. Milzoff’s testimony
regarding the presence and effects of the drugs in the
victim’s system as expert testimony, that testimony was
immaterial to the court’s determination that Demirjian’s
performance was not deficient. Accordingly, the court’s
error was harmless.
In sum, although we agree with the petitioner that
the habeas court erred by declining to treat Dr. Milzoff
as an expert witness at the habeas trial, we conclude
that the petitioner has failed to demonstrate that the
court’s error was harmful and, therefore, the court did
not abuse its discretion in denying the petition for certi-
fication to appeal as to this claim.
IV
The petitioner’s final substantive claim is that the
habeas court 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 cor-
pus. Specifically, the petitioner asserts that the court
erroneously failed to review specific excerpts from the
criminal trial transcripts.11 We disagree.
‘‘[T]he trier [of fact] is bound to consider all the
evidence which has been admitted, as far as admissible,
for all the purposes for which it was offered and
claimed. . . . [W]e are not justified in finding error
upon pure assumptions as to what the court may have
done. . . . We cannot assume that the court’s conclu-
sions were reached without due weight having been
given to the evidence presented and the facts found.
. . . Unless the contrary appears, this court will assume
that the court acted properly. . . . [I]f . . . [a] state-
ment [by the court may] suggest that the court did not
consider [certain] testimony, we . . . are entitled to
presume that the trial court acted properly and consid-
ered all the evidence. . . . There is, of course, no pre-
sumption of error.’’ (Citations omitted; internal
quotation marks omitted.) Moye v. Commissioner of
Correction, 168 Conn. App. 207, 229–30, 145 A.3d 362
(2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).
The following additional facts and procedural history
are relevant to this claim. During the petitioner’s direct
examination of Dr. Milzoff, the habeas court admitted
into evidence, without objection from the respondent,
a disc containing, inter alia, electronic copies of the
criminal trial transcripts in their entirety. The petitioner
explicitly referenced the transcripts on one occasion
during the remainder of the evidentiary portion of the
habeas trial. Specifically, during the petitioner’s redirect
examination of Demirjian, the petitioner directed
Demirjian to the excerpt reflecting the state’s comment
during the criminal trial that there had been ‘‘mention’’
of Dr. Milzoff at some point.12
At the outset of its decision denying the petitioner’s
amended petition for a writ of habeas corpus, issued
immediately following closing arguments, the habeas
court stated: ‘‘Now, obviously, since you have intro-
duced the transcript[s] of the [criminal] trial, I have not
had an opportunity to review the transcript[s] of the
trial. I don’t believe such review is necessary to a resolu-
tion of the issue in front of this court.’’ The petitioner
did not contest those statements.13
On appeal, the petitioner claims that the habeas court
erroneously failed to review specific excerpts from the
criminal trial transcripts. Specifically, the petitioner
asserts that the court should have reviewed the excerpt
reflecting the state’s comment during the criminal trial
that there had been ‘‘mention’’ of ‘‘Dr. [Milzoff] some
time ago . . . .’’ The petitioner argues that this excerpt
was critical for the court to review in assessing Demirji-
an’s credibility. Further, the petitioner asserts that the
court should have reviewed excerpts reflecting Demirji-
an’s attempts to elicit testimony from the state’s wit-
nesses about the drugs found in the victim’s system
and containing the petitioner’s testimony explaining his
justification for the actions he took against the victim.
The petitioner argues that those excerpts were crucial
for the court to review in order to understand how Dr.
Milzoff’s testimony regarding the drugs found in the
victim’s system would have aided the petitioner’s justifi-
cation defense at the criminal trial. In response, the
respondent argues, inter alia, that the transcripts were
immaterial to the court’s determination that Demirjian
did not render deficient performance by failing to call
an expert witness at the criminal trial. We agree with
the respondent.
‘‘The issue of whether the habeas court must read
every word of the underlying criminal trial transcript
has been addressed previously by this court. In Evans
v. Warden, 29 Conn. App. 274, 276–77, 613 A.2d 327
(1992), the petitioner alleged that his criminal appellate
counsel rendered ineffective assistance by failing to
raise a sufficiency of the evidence claim on direct
appeal. At the habeas trial, the habeas court stated that
‘I really don’t think that I have any cause whatsoever
to review the transcripts [of the underlying criminal
trial],’ and then denied the petition for a writ of habeas
corpus. . . . On appeal, this court held that the habeas
court abused its discretion by failing to read the trial
transcript because [a] full and fair review of the petition-
er’s claim that . . . appellate counsel provided ineffec-
tive assistance in failing to include a sufficiency of the
evidence claim in his direct appeal required the habeas
court to read the trial transcript. . . .
‘‘Since Evans, this court has clarified that Evans does
not stand for the proposition that a new hearing is
[always] warranted [if] the habeas court does not review
all of the evidence. . . . Although we recognize that
the habeas court must consider all of the evidence
admitted for all the purposes it is offered and claimed
. . . we also recognize that the court is not obligated
to review evidence that is not relevant to any issue
under consideration. . . . Additionally, [a]lthough a
habeas court is obligated to give careful consideration
to all the evidence . . . it does not have to read the
full text of every exhibit. . . .
‘‘In Hull [v. Warden, 32 Conn. App. 170, 177, 628 A.2d
32, cert. denied, 227 Conn. 920, 632 A.2d 691 (1993)],
this court emphasized that the extent that the criminal
trial transcript must be reviewed by the habeas court
depends upon the nature and scope of the particular
claim of ineffective assistance of counsel. The peti-
tioner in Hull had alleged that his criminal trial counsel
rendered ineffective assistance by failing to object to
certain testimony. . . . The habeas court determined
that trial counsel’s conduct was not deficient, and, thus,
did not reach the prejudice prong of Strickland. . . .
The habeas court further stated that it did not review
certain exhibits admitted at the habeas trial because it
did not consider them necessary to its decision. . . .
‘‘On appeal, this court, in reaching its decision, distin-
guished between the claim at issue in Hull and the
claim at issue in Evans. In Evans, the petitioner’s
habeas claim had implicated the sufficiency of the evi-
dence presented at the criminal trial, which require[s]
the reviewing court to construe all of the evidence pre-
sented at trial. . . . Thus, the habeas court’s refusal to
review any, let alone all, of the criminal trial transcript
required a new hearing. By contrast, in Hull, the peti-
tioner’s claims [were] exceedingly narrow in scope and
concerned solely with the testimony of [certain wit-
nesses]. This [was] particularly true because the habeas
court . . . concluded that . . . the petitioner’s coun-
sel was not ineffective for failing to object to [certain
testimony, and, thus], had no need to proceed to the
second prong of the Strickland test concerning the
potentially broader issue of prejudice. . . . Accord-
ingly, this court concluded that the habeas court did
not abuse its discretion by not reviewing the entire
trial transcript because the habeas court reviewed the
parties’ pretrial briefs, heard substantial testimony and
argument at the hearing, read the transcripts of [the
testimony of the witness at issue], and was properly
satisfied that . . . a review of the entire trial transcript
. . . would [not] have been of any additional benefit.
. . .
‘‘Likewise, in Rivera v. Commissioner of Correction,
51 Conn. App. 336, 338, 721 A.2d 918 (1998), this court
held that the habeas court, in determining whether trial
counsel rendered ineffective assistance, did not abuse
its discretion by reading only the portions of the crimi-
nal trial transcript that counsel specifically referenced,
although the entire criminal trial transcript had been
admitted into evidence. In so doing, this court empha-
sized that the habeas court had reviewed the portions
of the criminal trial transcript that the petitioner identi-
fied at the habeas trial as relevant to his claims, and,
on appeal, the petitioner was unable to articulate in his
brief or at oral argument any reason why the habeas
court was required to read the entire transcript in light
of his discrete, particularized claims of ineffective assis-
tance of counsel [none of which implicated the suffi-
ciency of the evidence admitted at the criminal trial].’’
(Citations omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) Moye v. Com-
missioner of Correction, supra, 168 Conn. App. 230–32.
In Moye v. Commissioner of Correction, supra, 168
Conn. App. 233, this court reiterated that, pursuant to
Hull and Rivera, the extent to which a habeas court is
required to review criminal trial transcripts admitted
into evidence at a habeas trial is ‘‘dependent upon the
particular claim made and on which prong of Strickland
the court based its determination.’’ This court also pro-
nounced that, absent the petitioner identifying on
appeal the portions of the transcripts that ‘‘(1) would
have altered the [habeas] court’s determination and (2)
the [habeas] court failed to read, this court is guided
by the presumption that the habeas court acted properly
and considered all the relevant evidence.’’ Id., 234. In
Moye, the petitioner alleged in relevant part that his
criminal defense counsel rendered ineffective assis-
tance by failing to request a sequestration order. Id.,
212 n.3, 227. The petitioner filed a pretrial brief with
portions of the criminal trial transcripts attached
thereto. Id., 227. At the habeas trial, several additional
portions of the transcripts that had not been attached
to the petitioner’s pretrial brief were admitted into evi-
dence. Id., 227–28. In denying the petitioner’s petition
for a writ of habeas corpus, the habeas court stated:
‘‘I’ve read the petitioner’s pretrial brief. I have not read
all of the transcripts that have been provided. I don’t
know that it is necessary to do so. There have been
references to those—to what has taken place.’’ (Empha-
sis in original.) Id., 228. The habeas court proceeded to
determine that counsel’s performance was not deficient
and further that, even assuming that counsel’s perfor-
mance was deficient, the petitioner had not suffered
any prejudice. Id., 229.
On appeal, the petitioner claimed that the habeas
court could not have determined whether he was preju-
diced by his criminal defense counsel’s alleged deficient
performance without reviewing all of the criminal trial
transcripts. Id., 225.
In rejecting that claim, this court determined that,
unlike Evans, the petitioner’s claim was narrowly
focused, and, like Hull, the habeas court found that the
petitioner had failed to prove that counsel’s perfor-
mance was deficient such that it did not have to address
the prejudice prong of Strickland, and therefore the
habeas court did not have to review all of the criminal
trial transcripts. Id., 233. In addition, this court empha-
sized that the habeas court read some, but not all, of
the transcripts. Id. This court presumed that the habeas
court acted properly and reviewed all of the relevant
transcripts, as the habeas court did not identify which
portions of the transcripts it had read. Id., 233–34. More-
over, the habeas court read the petitioner’s pretrial
brief, to which the petitioner had attached specific por-
tions of the criminal trial transcripts. Id., 234. Although
additional portions of the transcript were admitted into
evidence at the habeas trial, the petitioner failed to
articulate the significance of those additional portions
to his ineffective assistance of counsel claim. Id.
In the present case, the petitioner raised a discrete,
particularized claim at the habeas trial that Demirjian
rendered ineffective assistance by failing to call an
expert witness at the criminal trial to lay foundational
testimony to admit the victim’s toxicology report into
evidence. In rejecting that claim, the habeas court deter-
mined, inter alia, that Demirjian’s performance was not
deficient where, following his consultation with several
experts, Demirjian had concluded that the victim’s toxi-
cology report was of no value to the petitioner’s justifi-
cation defense.14 The excerpts from the criminal trial
transcripts reflecting Demirjian’s attempts to elicit testi-
mony from the state’s witnesses regarding the drugs
found in the victim’s system and containing the petition-
er’s testimony explaining his justification for his actions
against the victim had no bearing on the court’s analysis
of whether Demirjian’s performance was deficient. The
remaining excerpt reflecting the state’s comment during
the criminal trial that there had been ‘‘mention’’ of Dr.
Milzoff at some point was cumulative of Demirjian’s
testimony that Dr. Milzoff may have been mentioned
during the criminal trial. Thus, the court’s review of
that excerpt would not have altered its determination
that Demirjian’s performance was not deficient.
Therefore, the petitioner has failed to identify any
excerpts from the criminal trial transcripts that would
have altered the court’s determination that Demirjian’s
performance was not deficient. Accordingly, ‘‘this court
is guided by the presumption that the habeas court
acted properly and considered all the relevant evi-
dence.’’15 Moye v. Commissioner of Correction, supra,
168 Conn. App. 234.
In sum, we conclude that the petitioner has failed to
demonstrate that the habeas court abused its discretion
in failing to review the excerpts from the criminal trial
transcripts identified by the petitioner and, therefore,
the court did not abuse its discretion in denying the
petition for certification to appeal as to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
We deem the petitioner’s state constitutional claims abandoned because
he has failed to provide an independent analysis under our state constitution.
See Gomez v. Commissioner of Correction, 178 Conn. App. 519, 522 n.1,
176 A.3d 559 (2017), cert. granted on other grounds, 328 Conn. 916, 180
A.3d 962 (2018).
2
With one limited exception, the habeas court did not make any factual
findings in its oral decision denying the petitioner’s amended petition for a
writ of habeas corpus with respect to the events that gave rise to the
petitioner’s arrest and conviction. Accordingly, we include the factual recita-
tion set forth in the decision resolving the petitioner’s direct appeal from
his conviction.
3
‘‘The victim and his wife previously had complained to the [petitioner]
and his girlfriend about their loud music. The [petitioner], at one point,
called the victim’s wife ‘a devil.’ The victim and his wife also telephoned
the police on several occasions to complain about the noise, and the police
went to the [petitioner’s] apartment on several occasions.’’
4
The petitioner, representing himself, filed a second petition for a writ
of habeas corpus on September 18, 2014, claiming that he had been ‘‘denied
a lawyer at interrogation after [he] requested counsel be present’’ in violation
of his state and federal constitutional rights to due process. On March 25,
2015, the petitioner, through appointed counsel, filed a motion to consolidate
the two pending habeas actions, which the habeas court granted on April
10, 2015.
5
The habeas court subsequently filed a signed transcript of its oral decision
with the clerk of the court. See Practice Book § 64-1 (a).
6
The petitioner also asserts that he was prejudiced by Demirjian’s alleged
deficient performance. Because we conclude that the habeas court did not
err in determining that Demirjian’s performance was not deficient, we need
not reach the petitioner’s claim regarding prejudice. See, e.g., Rosa v. Com-
missioner of Correction, 171 Conn. App. 428, 435 n.6, 157 A.3d 654 (‘‘the
failure to prove either prong of the Strickland standard is determinative of
the petitioner’s ineffective assistance of counsel claim’’), cert. denied, 326
Conn. 905, 164 A.3d 680 (2017).
7
The petitioner also relies on the excerpt from the criminal trial transcripts
reflecting that the state had noted during the criminal trial that there had
been ‘‘mention’’ of ‘‘Dr. [Milzoff] some time ago . . . .’’ The petitioner con-
tends that the excerpt supports his proposition that Demirjian was aware
of and had consulted with Dr. Milzoff around the time of the criminal trial.
We are not persuaded. In the excerpt, the state did not represent that
Demirjian had disclosed Dr. Milzoff as a potential witness or otherwise
indicate how it had become aware of Dr. Milzoff. The excerpt does not
demonstrate that Demirjian was familiar with and had contacted Dr. Milzoff;
rather, the excerpt is merely cumulative of Demirjian’s testimony that Dr.
Milzoff may have been mentioned during the criminal trial.
8
Specifically, Dr. Milzoff testified that he had been a forensic toxicologist
since 1972, that he had a bachelor’s degree in pharmacy, a master’s degree
in toxicology and a doctorate in toxicology, that he was board certified, a
diplomat of the American Board of Forensic Toxicologists, a charter member
of the Society of Forensic Toxicologists and a member of the American
Academy of Forensic Sciences, and that he had testified as an expert toxicol-
ogist ‘‘hundreds of times.’’
9
The respondent concedes that the petitioner was not required to offer
Dr. Milzoff expressly to be accepted by the habeas court as an expert
witness; however, the respondent argues that the petitioner suffered no
harm by the court’s error because the court considered, and ultimately
rejected, the substance of Dr. Milzoff’s testimony. We disagree with the
respondent’s argument. Although the court addressed the substance of Dr.
Milzoff’s testimony, the court found that the testimony was not persuasive
because the court did not consider it to be expert testimony.
10
The commentary to § 7-2 of the Connecticut Code of Evidence was
amended effective February 1, 2018. The commentary to § 7-2 currently
provides in relevant part: ‘‘Section 7-2 requires a party offering expert testi-
mony, in any form, to show that the witness is qualified and that the testimony
will be of assistance to the trier of fact. A three part test is used to determine
whether these requirements are met. . . . First, the expert must possess
knowledge, skill, experience, training, education or some other source of
learning directly applicable to a matter in issue. . . . Second, the witness’
skill or knowledge must not be common to the average person. . . . Third,
the testimony must be helpful to the fact finder in considering the issues.
. . . The inquiry is often summarized in the following terms: ‘The true test
of the admissibility of [expert] testimony is not whether the subject matter
is common or uncommon, or whether many persons or few have some
knowledge of the matter; but it is whether the witnesses offered as experts
have any peculiar knowledge or experience, not common to the world,
which renders their opinions founded on such knowledge or experience any
aid to the court or the jury in determining the questions at issue.’ ’’ (Citations
omitted.) The amendment does not affect our analysis.
11
In his principal appellate brief, the petitioner appeared to claim that
the habeas court abused its discretion in failing to review all of the criminal
trial transcripts. In his reply brief and during oral argument before this
court, however, the petitioner limited his claim by arguing that the habeas
court’s failure to review specific excerpts from the transcripts constituted
an abuse of discretion.
12
During its cross-examination of Demirjian, the respondent directed
Demirjian to a different excerpt to refresh Demirjian’s recollection regarding
a ruling issued during the criminal trial. In addition, during his closing
argument, the petitioner argued that it was his ‘‘understanding from reading
the [criminal trial] transcripts’’ that the trial court had precluded the admis-
sion of the victim’s toxicology report into evidence prior to Demirjian’s
cross-examination of Dr. Carver because it was not relevant to Dr. Carv-
er’s testimony.
13
The petitioner was not required to object to the statements at issue in
order to preserve his claim on appeal that the court abused its discretion
in failing to review specific excerpts from the criminal trial transcripts. See
Moye v. Commissioner of Correction, supra, 168 Conn. App. 225–27.
14
Although the habeas court also determined that the petitioner failed to
establish that he was prejudiced by Demirjian’s alleged deficient perfor-
mance, the court was not required to reach that inquiry following its determi-
nation that the petitioner failed to demonstrate that Demirjian’s performance
was deficient and, thus, the court was not required to consider the entirety
of the criminal trial transcripts. Moye v. Commissioner of Correction, supra,
168 Conn. App. 233.
15
Although we reject the petitioner’s claim, we reiterate the cautionary
note that this court in Moye directed to habeas courts: ‘‘A [trier of fact] is
bound to consider all the evidence which has been admitted, as far as
admissible, for all the purposes for which it was offered and claimed. . . .
[This principle is] fully applicable in habeas corpus trials. . . . Just as a
jury should give careful consideration to all the evidence in a case, so too
should a habeas court give careful consideration to all the evidence. . . .
If a habeas court concludes that it is not necessary to review certain exhibits
in light of the manner in which it has disposed of the claims, it should
endeavor to explain what it has not reviewed and why it is not necessary
to do so. A court should strive to avoid leaving litigants with the impression
that it has failed to discharge its duty or somehow acted unlawfully. Public
confidence in our justice system is undermined if parties perceive that a
court has not met its obligation to provide them with a full and fair review
of their claims. We caution courts not to abrogate their duty to review the
evidence admitted at trial or to give litigants the erroneous impression
that they have done so.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Moye v. Commissioner of Correction, supra, 168
Conn. App. 234–35.