Abreu v. Commissioner of Correction , 172 Conn. App. 567 ( 2017 )

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RAFAEL ABREU v. COMMISSIONER
OF CORRECTION
(AC 38161)
DiPentima, C. J., and Prescott and Alander, Js.
Argued December 6, 2016—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Peter Tsimbidaros, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Eva B. Lenczewski, senior assistant state’s attorney,
for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Rafael Abreu, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus, which
alleged ineffective assistance of prior habeas counsel.1
The petitioner claims on appeal that the habeas court
improperly rejected his claim that his prior habeas
counsel provided ineffective assistance by failing to
pursue adequately three claims of ineffective assistance
of trial counsel. Specifically, the petitioner claims that
trial counsel improperly failed (1) to conduct an ade-
quate investigation regarding a potentially exculpatory
witness, (2) to offer certain evidence in support of the
petitioner’s self-defense claim, and (3) to advise the
petitioner properly regarding his potential sentence
exposure should he proceed to trial. We affirm the judg-
ment of the habeas court.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s appeal. The
petitioner was charged with murder following the Octo-
ber, 2002 shooting death of Juan Carlos Martinez (vic-
tim) outside of a Waterbury cafe. State v. Abreu, 106
Conn. App. 278, 281, 941 A.2d 974, cert. denied, 286
Conn. 919, 946 A.2d 1249 (2008). The facts underlying
the victim’s death were set forth by this court in its
opinion affirming the petitioner’s judgment of convic-
tion. ‘‘Several days prior to October 20, 2002, the [peti-
tioner] and some others, including Elvis Castro and
Castro’s girlfriend, Vanessa Garcia, were at the Los
Amigos pool hall in Waterbury. At some point, an alter-
cation ensued between the [petitioner] and a group of
patrons, which included the victim . . . . During the
altercation, the [petitioner] was beaten and struck in
the head with beer bottles.
‘‘On October 20, 2002, the [petitioner], Castro and a
few others went to the Eldorado Cafe in Waterbury.
While having drinks, the [petitioner] recognized one or
more persons in the cafe as having been part of the
group of people who had been at the pool hall days
earlier and had beaten him. Thereafter, the [petitioner]
exited the cafe. A confrontation subsequently occurred
between the [petitioner], the victim and others. The
[petitioner] shot the victim, and the victim died.’’ (Foot-
note omitted.) Id.The petitioner never disputed that he shot the victim,
but asserted that he was not the initial aggressor and
had shot the victim in self-defense. Id., 281, 288. On
May 20, 2005, a jury found the petitioner guilty of the
lesser included offense of first degree manslaughter
with a firearm in violation of General Statutes § 53a-
55a (a). Id., 281–82. He was sentenced on August 8,
2005, to a total effective term of thirty-eight years of
incarceration. Id., 282.
As indicated, this court affirmed the petitioner’s judg-
ment of conviction on direct appeal.2 Id., 281. On Janu-
ary 9, 2008, the petitioner filed a pro se petition for a
writ of habeas corpus (first habeas petition). The court
appointed Attorney Paul Kraus to represent the peti-
tioner. The first habeas petition was tried before the
habeas court, Sferrazza, J., which issued a memoran-
dum of decision on August 1, 2011, denying the petition.
Although the petitioner raised a number of claims in
his first habeas petition, the sole claim pursued at the
habeas trial was that the petitioner’s trial counsel, Attor-
ney Martin Minnella, had failed to investigate and to
call as a defense witness Luis Vicente, a fourteen year
old boy who had observed the shooting from an apart-
ment located over the cafe.3 Judge Sferrazza determined
that the petitioner had failed to prove that he received
ineffective assistance of trial counsel because, even if
Vicente had testified, his testimony likely would have
been damaging to the petitioner’s self-defense claim
considering that, in his statement to the police, the boy
had stated that the petitioner had been chasing the
victim at the time of the shooting. Accordingly, there
was a reasonable strategic reason for Minnella not to
call Vicente as a witness. The court also found that the
petitioner had failed to prove that the absence of the
boy’s testimony prejudiced the petitioner in any appre-
ciable way.
The petitioner appealed, following the denial of certi-
fication. This court dismissed the appeal by memoran-
dum decision. Abreu v. Commissioner of Correction,
140 Conn. App. 904, 62 A.3d 1182, cert. denied, 308
Conn. 917, 62 A.3d 1132 (2013).
Prior to a final resolution of the appeal from the
denial of his first habeas petition, the petitioner filed
this second pro se habeas petition on August 17, 2012,
commonly referred to as a ‘‘habeas on a habeas.’’ Kad-
dah v. Commissioner of Correction, 324 Conn. 548,
550, A.3d (2017). In it, he claimed that Kraus had
provided ineffective assistance in his representation of
the petitioner in his first habeas action. The court later
appointed the petitioner habeas counsel. The respon-
dent, the Commissioner of Correction, filed a return in
which he asserted, by way of special defense, proce-
dural default, waiver and res judicata.
The habeas court, Oliver, J., conducted a trial on the
second habeas petition on March 4, 2015. The only
witness called to testify at the trial was the petitioner.
The court admitted into evidence, without objection,
exhibits that were premarked by agreement. Those
exhibits included transcripts of the criminal trial and
the trial on the prior habeas petition.
On June 18, 2015, the habeas court issued a decision
finding in favor of the respondent on all issues and
denying in part and dismissing in part the petition. The
court first dismissed all claims raised by the petitioner
except those directed at prior habeas counsel, conclud-
ing that the petitioner was procedurally defaulted as to
claims directly challenging trial counsel’s performance
and that ‘‘the petitioner has failed to sufficiently estab-
lish good cause to excuse the defaults . . . .’’4 The
court nevertheless proceeded in the alternative to
review several ‘‘defaulted’’ claims raised against trial
counsel, rejecting each on its merits. The habeas court
then turned to the petitioner’s claim that his prior
habeas counsel provided ineffective assistance. After
setting forth the proper standard of review, the habeas
court concluded that ‘‘because the petitioner failed to
set forth a prima facie case regarding the ineffective
assistance of his trial counsel, he has not set forth a
prima facie case of ineffective assistance of his habeas
counsel. Additionally, a full review of the habeas trial
transcript as well as the habeas trial court’s memoran-
dum of decision reveals no deficiencies in Attorney
Kraus’ representation at the trial of the previous habeas
corpus petition in the preparation, investigation and
prosecution of the petition.’’ The habeas court later
granted certification to appeal, and this appeal
followed.5
The petitioner claims on appeal that the habeas court
improperly rejected his claim that Kraus was ineffective
because he failed either to raise or adequately pursue
in his prior habeas corpus action three claims of ineffec-
tive assistance by Minnella. Specifically, the petitioner
asserts that Minnella failed (1) to conduct an adequate
investigation regarding a potentially exculpatory wit-
ness, (2) to introduce crucial evidence in support of
the petitioner’s claim of self-defense, and (3) to advise
the petitioner properly regarding his sentence exposure
if he proceeded to trial. The habeas court addressed
each of these claims against Minnella, rejecting them
all, and, on that basis, also rejected the petitioner’s
claims against Kraus. We agree that the petitioner has
failed to demonstrate that Minnella’s performance was
ineffective as to any of these claims or that Kraus failed
to adequately prosecute them. Accordingly, we con-
clude that the habeas court properly rejected his claim
that Kraus’ performance amounted to ineffective assis-
tance of counsel.
The standard of review and legal principles that gov-
ern our consideration of the petitioner’s claims on
appeal are well settled. ‘‘The use of a habeas petition
to raise an ineffective assistance of habeas counsel
claim . . . was approved by our Supreme Court in
Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992).
In Lozada, the court determined that the statutory right
to habeas counsel for indigent petitioners provided in
General Statutes § 51-296 (a) includes an implied
requirement that such counsel be effective, and it held
that the appropriate vehicle to challenge the effective-
ness of habeas counsel is through a habeas petition.
. . . [T]he court explained that [t]o succeed in his bid
for a writ of habeas corpus, the petitioner must prove
both (1) that his appointed habeas counsel was ineffec-
tive, and (2) that his trial counsel was ineffective. . . .
As to each of those inquiries, the petitioner is required
to satisfy the familiar two-pronged test set forth in
Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)]. First, the [petitioner]
must show that counsel’s performance was deficient.
. . . Second, the [petitioner] must show that the defi-
cient performance prejudiced the defense. . . . Unless
a [petitioner] makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in
the adversary process that renders the result unreliable.
. . . In other words, a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of trial counsel must essentially satisfy
Strickland twice . . . .’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Gerald W.
v. Commissioner of Correction, 169 Conn. App. 456,
463–64, 150 A.3d 729 (2016), cert. denied, 324 Conn.
908, 152 A.3d 1246 (2017).
‘‘The 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
historical facts to questions of law that is necessary
to determine whether the petitioner has demonstrated
prejudice under Strickland, however, is a mixed ques-
tion of law and fact subject to our plenary review.’’
(Citation omitted; internal quotation marks omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
717, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz,
555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
I
The petitioner first asserts that Kraus’ performance
was deficient because he failed to adequately present
the petitioner’s claim that Minnella provided ineffective
assistance by failing to conduct an adequate pretrial
investigation regarding Vicente, the teen who witnessed
the shooting. The petitioner claims that an adequate
investigation by trial counsel would have unearthed
exculpatory evidence supporting his self-defense claim,
namely, that Vicente would have testified that someone
removed an unidentified object from the victim’s waist-
band after the shooting that the petitioner claims was
a gun or some other weapon. The petitioner argues that
if the jury believed that the victim was armed with a
weapon, that evidence would have bolstered his claim
of self-defense because it would have helped to corrobo-
rate that he was not the aggressor and had shot the
victim only because he feared for his own life. The
petitioner further claims that, although Kraus raised an
inadequate investigation claim in the first habeas action,
Kraus’ performance nevertheless was deficient because
he failed to call Vicente as a witness at the first habeas
trial in support of the claim.
The habeas court concluded that the petitioner’s
claim against his trial counsel failed because he did
not satisfy his burden of showing how he would have
benefited from additional investigation regarding
Vicente. In other words, the habeas court, like the judge
in the first habeas action, rejected the petitioner’s claim
against trial counsel on Strickland’s prejudice prong,
and this necessarily was also fatal to his claim against
prior habeas counsel. The habeas court also concluded
that Kraus’ performance in prosecuting this claim in
the first habeas action was not deficient. We agree with
the habeas court.
The facts underlying this claim were set forth by the
first habeas court in its memorandum of decision, which
was entered into evidence as a full exhibit in this action
and quoted by the habeas court in the present case.
‘‘On the date of the shooting, [Vicente] was a fourteen
year old boy who was visiting his sister, who resided
in an apartment above the Eldorado Cafe. The next day,
October 21, 2002, Vicente gave a written statement to
the Waterbury police and disclosed that he heard gun-
fire from the street below his sister’s home and ran to
the window to investigate. He observed the petitioner,
whom he positively identified, firing shots at someone.
Vicente then ran downstairs and watched the petitioner
pursue the victim and fire additional shots. He saw the
victim attempt to flee and then collapse.
‘‘Eight and one-half years later on April 4, 2011, an
investigator for the petitioner interviewed Vicente, who
is now an inmate at the Osborn Correctional Institution.
During this oral interview, Vicente stated that he heard
an argument on October 20, 2002, but never heard any
gunshots. Vicente ran outside, and it was only then that
he learned that someone had been shot. He denies ever
knowing the identity of the shooter. He also adds, how-
ever, that he now recalls seeing someone approach the
body lying in the street and remove an object from the
victim’s waistband. Vicente could not say whether the
object was a weapon or not.’’
At the first habeas trial, Kraus pursued the claim
that trial counsel was ineffective because he had not
adequately investigated Vicente prior to trial or called
him as a witness. As previously indicated, the first
habeas court rejected that claim primarily because the
state never called Vicente to testify at the criminal trial,
it was not known when Vicente changed his story
regarding the events of the shooting, and it was ‘‘too
speculative to assume that his version of events in 2005,
when the jury trial occurred, would correspond to either
his October 21, 2002 written statement [to the police]
or his April 4, 2011 oral statement. The fact that, nearly
six years after the trial and eight and one-half years
after the occurrence, Vicente, a sentenced prisoner,
presently avers that the victim possessed some
unknown object in his waistband hardly supports an
allegation that, had Vicente been called as a defense
witness in 2005, he would have related the same story.’’
The petitioner was not entitled to relitigate in the
present action his claims against trial counsel, which
were thoroughly addressed and rejected in his first
habeas action, and affirmed by this court on appeal.
Rather, he now claims that Kraus’ performance was
deficient because he did not call Vicente to testify at
the first habeas trial. The petitioner, however, has failed
to satisfy either prong of the Strickland test with
respect to that claim.
The habeas court summarily rejected the petitioner’s
assertion that habeas counsel’s performance was defi-
cient, finding on the basis of its review of the record
that Kraus’ performance was not deficient ‘‘in the prepa-
ration, investigation and prosecution of the petition.’’
(Emphasis added.) Making strategic decisions about
who to call to testify at the habeas trial is part of prose-
cuting a petition. It is axiomatic that ‘‘[j]udicial scrutiny
of counsel’s performance must be highly deferential’’
and that ‘‘a court must indulge a strong presumption
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.’’ (Internal quotation marks
omitted.) Spearman v. Commissioner of Correction,
164 Conn. App. 530, 539, 138 A.3d 378, cert. denied, 321
Conn. 923, 138 A.2d 284 (2016). The petitioner has failed
to demonstrate that the habeas court’s assessment of
Kraus’ performance was reversible error.
The record shows that although Kraus did not call
Vicente to testify at the habeas trial, he did offer into
evidence a summary of Vicente’s 2011 statement pre-
pared by the petitioner’s investigator, which included
Vicente’s recollection that an object was removed from
or near the waistband of the victim. Accordingly, Kraus
presented relevant information necessary for the first
habeas court to evaluate the petitioner’s claim and to
determine whether Vicente’s testimony would have
helped the petitioner. See Andrews v. Commissioner
of Correction, 45 Conn. App. 242, 247, 695 A.2d 20 (in
support of claim that trial counsel was ineffective by
failing to call witness, petitioner should either present
witness at habeas trial ‘‘or otherwise present evidence
to establish that [the witness’] testimony at trial would
be favorable to him’’ [emphasis added]), cert. denied,
242 Conn. 910, 697 A.2d 364 (1997). Furthermore, it is
unknown which version of events Vicente would have
given if he had been called to testify at the habeas trial,
or how he would have fared under cross-examination
if confronted with his inconsistent statement to police.
The petitioner did not call Kraus, Vicente or an expert
to testify at the habeas trial, and, thus, the record before
us simply is silent as to why Kraus chose not to call
Vicente as a witness or whether that choice was less
than competent under the circumstances. The peti-
tioner has the burden of rebutting the presumption that
counsel acted within the bounds of reasonable profes-
sional assistance. See Safford v. Warden, 223 Conn.
180, 193, 612 A.2d 1161 (1992). The petitioner has failed
to demonstrate that Kraus’ decision to refrain from
presenting Vicente as a witness was not an objectively
reasonable trial strategy.
Moreover, even if the petitioner was able to demon-
strate that Kraus’ failure to call Vicente to testify at the
first habeas trial amounted to deficient performance,
he has not established how he was prejudiced. ‘‘With
respect to the prejudice component of the Strickland
test, the petitioner must demonstrate that counsel’s
errors were so serious as to deprive the [petitioner] of
a fair trial, a trial whose result is reliable. . . . It is not
enough for the [petitioner] to show that the errors had
some conceivable effect on the outcome of the proceed-
ings. . . . Rather, [t]he [petitioner] must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.’’ (Internal quotation marks
omitted.) White v. Commissioner of Correction, 145
Conn. App. 834, 841, 77 A.3d 832, cert. denied, 310 Conn.
947, 80 A.3d 906 (2013).
As the respondent correctly argues in his brief, the
petitioner failed to present any evidence at the second
habeas trial that demonstrated why Vicente’s live testi-
mony, rather than the summary, would have been help-
ful to the petitioner’s ineffective assistance of trial
counsel claim, or that the result of the previous habeas
trial would have been different if Vicente had testified.
That failure is, by itself, fatal to the petitioner’s claim.
The petitioner failed to demonstrate in his prior
habeas action that he was prejudiced by trial counsel’s
alleged failure to conduct a thorough pretrial investiga-
tion of Vicente, and his assertion that habeas counsel
provided ineffective assistance by failing to call Vicente
as a witness in support of that claim likewise fails.
II
The petitioner next claims that habeas counsel was
ineffective because he failed to pursue in the prior
habeas action a claim that trial counsel had failed to
ensure that other crucial evidence in support of the
petitioner’s claim of self-defense was introduced into
evidence. In particular, the petitioner claims that trial
counsel failed to have admitted into evidence the con-
tents of a toxicology report that would have shown that
the victim had alcohol in his system at the time of the
shooting. The petitioner takes the position that the jury
reasonably could have inferred from the fact that the
victim had been drinking alcohol that the victim was
more likely to have been violent and aggressive toward
the petitioner, making the petitioner’s claim of self-
defense more credible.
The record shows that the toxicology report was the
subject of a pretrial motion in limine by the state, which
sought to preclude the admission of evidence of the
blood alcohol content of the victim. Trial counsel, there-
fore, did not fail to offer the evidence as suggested by
the petitioner, but instead its admission was precluded
by the court. This court affirmed on direct appeal the
trial court’s decision to exclude the toxicology report.6
The habeas court concluded that the petitioner’s
claim that he was prejudiced by his trial counsel’s fail-
ure to have admitted forensic evidence showing that
the victim was intoxicated at the time of the shooting
was unavailing because he had not demonstrated that
the admission of such evidence would have led to a
different result at trial. The habeas court observed that
the petitioner failed to present any evidence or call a
witness during the habeas trial to support his premise
that alcohol caused the victim in this case to be
more aggressive.7
This court held in the petitioner’s direct appeal from
his conviction that, in order to introduce evidence of
the victim’s alcohol content in support of the defense
theory linking inebriation and aggressive behavior to
bolster the petitioner’s testimony that the victim was the
initial aggressor in this case, the petitioner effectively
needed to present expert testimony. State v. Abreu,
supra, 106 Conn. App. 288–89. Trial counsel failed to
do so in this case. In so holding, this court tacitly
rejected the notion that such a linkage was within the
ken of the average juror.8 See Conn. Code Evid. § 7-
2, commentary (expert testimony limited to scientific,
technical and specialized information beyond common
knowledge and comprehension of average juror). The
habeas court was bound by that decision and, therefore,
in order for the petitioner to establish that habeas coun-
sel was ineffective by failing to challenge trial counsel’s
failure to present expert testimony, the petitioner
needed to show that it would have been possible to
present such testimony by presenting a witness to that
effect at the habeas trial. He failed to do so.
On the basis of our review of the evidence presented,
we agree with the habeas court that the petitioner has
failed to satisfy the prejudice prong of Strickland with
respect to his claim that trial counsel was ineffective
for failing to ensure that the toxicology report was
admitted into evidence at the criminal trial. The claim
simply fails to rise above ‘‘[m]ere conjecture and specu-
lation,’’ which we have indicated on numerous occa-
sions is insufficient to establish prejudice. (Internal
quotation marks omitted.) Sinchak v. Commissioner
of Correction, 126 Conn. App. 670, 678, 14 A.3d 348, cert.
denied, 301 Conn. 901, 17 A.3d 1045 (2011). Accordingly,
because the petitioner failed to establish that he had a
viable claim of ineffective assistance of trial counsel,
his assertion that his prior habeas counsel provided
ineffective assistance by failing to raise that claim simi-
larly lacks merit. See Lapointe v. Commissioner of
Correction, 113 Conn. App. 378, 403, 966 A.2d 780 (2009)
(rejecting claim that habeas counsel was ineffective for
failing to raise claim of ineffective assistance of trial
counsel because petitioner failed to establish prejudice
prong in claim against trial counsel).
III
Finally, the petitioner claims that prior habeas coun-
sel failed to raise in his first habeas action a claim that
trial counsel was ineffective because, at the time he
was retained by the petitioner, he promised that he
could ensure that the petitioner would serve a sentence
of no more than twenty years if he went to trial. Because
the petitioner failed to establish that trial counsel ever
made such a promise or that he inaccurately advised
him regarding his sentence exposure, the petitioner’s
claim lacks merit, and prior habeas counsel was not
ineffective in declining to raise this claim.
At the underlying habeas trial, the petitioner testified
that he made the decision to retain Minnella because
Minnella had promised him that ‘‘he was connected,
[and] that he would get [the petitioner], if not released,
less than twenty years.’’ The petitioner also stated that
his decision to go to trial was made on the basis of
that promise. The petitioner acknowledged on cross-
examination, however, that Minnella never used the
words, ‘‘I promise,’’ and that there was no written
agreement with Minnella. He testified that he was aware
that sentencing decisions were made by the trial court,
not counsel, and that the only plea offer made by the
state was for a fifty year sentence on the murder charge.
The petitioner indicated that he never informed the trial
court that he expected a twenty year sentence and never
filed a grievance against Minnella.
The petitioner asserted at the habeas trial that he
informed Kraus of Minnella’s alleged promise and asked
him to pursue a claim of ineffective assistance, but that
Kraus did not do so. The petitioner was not asked, and
thus did not indicate for the record, whether Kraus
provided him with an explanation for not pursuing the
claim. As previously indicated, Kraus was not called
as a witness, and no other evidence was presented
regarding whether Kraus’ decision not to raise the claim
was strategic in nature.
The habeas court, in rejecting the petitioner’s claim,
found that the only evidence of a promise by Minnella
was the testimony of the petitioner, which the habeas
court found was not credible ‘‘on this and [in] several
other respects.’’ Because we are bound by the credibil-
ity determinations of the habeas court; Sanchez v. Com-
missioner of Correction, 314 Conn. 585, 604, 103 A.3d
954 (2014); there is simply no evidence in the record
to support the petitioner’s claim against trial counsel
and, therefore, his claim against Kraus also fails.
In sum, the petitioner has failed to establish that
he received the ineffective assistance of prior habeas
counsel. Accordingly, the habeas court properly denied
the petition for a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted certification to appeal from the judgment
pursuant to General Statutes § 52-470 (b).
2
The petitioner claimed on direct appeal that the trial court ‘‘(1) violated
his right to present a defense by excluding evidence of (a) the victim’s
alleged drug activity and (b) the [petitioner]’s knowledge of the prior arrests
of the victim, the victim’s alleged status as a fugitive, the victim’s use of an
alias and the victim’s blood alcohol content on the night of the shooting
and (2) improperly denied his motion to suppress the statement he gave to
the police.’’ State v. Abreu, supra, 106 Conn. App. 280. This court determined
that the criminal trial court had properly admitted the petitioner’s statement
and properly excluded the other evidence.
3
Vicente was not called by the state to testify at the criminal trial.
4
In a footnote in his appellate brief, the petitioner claims that the habeas
court improperly determined that he was procedurally defaulted on claims
alleging ineffective assistance of criminal trial counsel. The petitioner argues
that the allegations in the second habeas petition pertaining to the perfor-
mance of trial counsel were raised only in the context of his claim that
prior habeas counsel improperly failed to raise them or failed to adequately
prosecute them in the first habeas action. Although we agree with the
petitioner that the habeas court appears to have referred to the allegations
directed at trial counsel mistakenly as ‘‘defaulted claims,’’ the habeas court
nevertheless also properly addressed the merits of those allegations in the
context of the ineffective assistance claims against prior habeas counsel.
See Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992). Accordingly,
any misunderstanding or misstatement by the habeas court in that regard
was harmless error.
5
In his appellate brief, the petitioner takes issue with the habeas court’s
memorandum of decision, which he argues is ‘‘devoid of any analysis in
support of the conclusions.’’ We nevertheless note that it is the appellant
who is responsible for providing this court with an adequate record for
review of claims raised on appeal; Practice Book §§ 60-5 and 61-10; and,
thus, if the petitioner believed that the habeas court’s memorandum of
decision failed adequately to set forth the factual and legal basis for its
decision, the petitioner should have sought an articulation. We endeavor to
review the petitioner’s claims on the basis of the record provided.
6
On direct appeal, this court explained that, during his criminal trial, ‘‘the
[petitioner] proffered testimony that, on the basis of his observations, he
believed that the victim may have been intoxicated. The [petitioner] claimed
that intoxication would have led the victim to have an increased level of
aggression, and, therefore, evidence of the victim’s intoxication was relevant
to whether the victim was the initial aggressor and relevant to the [petition-
er]’s state of mind at the time of the shooting, namely, the reasonableness
of his fear. The petitioner sought to call a toxicologist to testify that the
autopsy records indicated that the victim’s blood alcohol content was 0.17
[percent]. The court permitted the [petitioner] to testify regarding his obser-
vations on which he based his belief that the victim was intoxicated. The
court, however, excluded evidence regarding the victim’s blood alcohol
content to show that the victim was the aggressor, absent some evidence
that the alcohol in the victim caused him to be more aggressive. The court
offered to excuse the jury if and when such connective evidence [was]
proffered. The [petitioner] never proffered evidence establishing such a
connection. The court, therefore, properly determined that the [petitioner]’s
proffer regarding the victim’s blood alcohol content was deficient because
it lacked any evidence connecting the victim’s level of intoxication with a
tendency toward aggression.’’ State v. Abreu, supra, 106 Conn. App. 288–89.
7
The habeas court also reasoned that ‘‘the petitioner’s proposed theory
of defense that inebriation leads to violence would have applied equally to
him, as he admitted to drinking before the killing.’’ The court seems to be
suggesting that if the petitioner had been allowed to present his victim
intoxication theory, the jury may have also applied the theory to the petition-
er’s own behavior and, therefore, it is, at most, uncertain whether the evi-
dence would have affected the outcome of the trial.
8
On appeal, the petitioner cites to cases that he asserts support the notion
that the effects of alcohol and drug use generally are within the common
knowledge of the average juror. See, e.g., State v. Clark, 260 Conn. 813, 824,
801 A.2d 718 (2002) (holding average juror understood effects of alcohol
and marijuana on person’s ability to perceive and recall events). Neither
Clark nor the other cases cited, however, address the more narrow issue
that this court appears to have decided in the petitioner’s direct appeal,
namely, whether a causal link between intoxication and aggressive behavior
was within the common knowledge, experience or common sense of the
average juror. As was the habeas court, we are bound by our prior decision.
See Samuel v. Hartford, 154 Conn. App. 138, 144, 105 A.3d 333 (2014)
(axiomatic that one panel of this court cannot overrule precedent established
by previous panel’s holding).