Kaddah v. Commissioner of Correction ( 2022 )

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NABEEL KADDAH v. COMMISSIONER
OF CORRECTION
(AC 42942)
Alvord, Elgo and Alexander, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder, attempt
to commit murder and unlawful restraint in the first degree, appealed
to this court from the judgment of the habeas court, which denied his
third amended petition for a writ of habeas corpus. The petitioner
claimed that his counsel in the two prior habeas actions rendered ineffec-
tive assistance by not pursuing a claim that his counsel at trial and on
direct appeal were ineffective for having failed to challenge the trial
court’s jury instructions as to his affirmative defense of mental disease
or defect and the element of intent required to find him guilty of the
charges against him. The habeas court concluded that, although the
trial court twice included the definition of general intent in its jury
instructions, the jury was not misled into believing that it could find
the petitioner guilty without also finding that he had the specific intent
to kill. The habeas court also concluded that the petitioner failed to
establish that he was prejudiced by prior habeas counsel’s failures to
pursue a claim that trial and appellate counsel rendered ineffective
assistance in choosing not to challenge the trial court’s failure to instruct
the jury that it could find the petitioner not guilty if it determined
that, due to mental disease or defect, he lacked substantial capacity to
appreciate the wrongfulness of his conduct. The habeas court deter-
mined that the evidence the petitioner had offered as to the defense of
mental disease or defect was insufficient to overcome the overwhelming
evidence of his guilt. Held:
1. The petitioner could not prevail on his claim that he was prejudiced by
prior habeas counsel’s failures to argue that trial and appellate counsel
rendered ineffective assistance in deciding not to challenge the jury
instructions on the element of intent in the crimes of which he was
convicted; the petitioner’s claim had no reasonable probability of suc-
cess on appeal, as any possible risk that the jury was misled as to that
element was eliminated by the court’s numerous other proper instruc-
tions as to that element.
2. The habeas court properly concluded that the petitioner failed to establish
that he was prejudiced by prior habeas counsel’s failures to challenge
the choice by his trial and appellate counsel not to dispute the jury
instruction as to the defense of mental disease or defect: the habeas court
reasonably determined that the jury likely did not credit the testimony
of the petitioner’s expert witness, M, a psychiatrist and neurologist, that
the petitioner’s medical conditions made it impossible for him to plan,
deliberate and act rationally, as M’s testimony was contradicted by the
state’s witness, B, a psychiatrist, and the court’s finding that the state
thoroughly discredited M’s testimony on cross-examination was not
clearly erroneous; moreover, although the habeas court did not have the
opportunity to evaluate the demeanor of M or B during their testimony
at the petitioner’s criminal trial, it was the habeas court’s exclusive
province to weigh all the evidence before it, which included the tran-
scripts of that trial, and, given the substantial evidence in support of
the petitioner’s guilt, there was no reasonable probability that, but for the
absence of an instruction as to whether he lacked substantial capacity
to appreciate the wrongfulness of his conduct, the result of his criminal
trial would have been different.
Argued February 17, 2021—officially released April 26, 2022
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, Sferrazza, J.; judgment dismiss-
ing the petition, from which the petitioner, on the grant-
ing of certification, appealed; thereafter, the Supreme
Court reversed the habeas court’s judgment in part and
remanded the case to that court for further proceedings;
subsequently, the court, Newson, J., rendered judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Craig P. Nowak, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Nabeel Kaddah,1 appeals
from the judgment of the habeas court denying his third
petition for a writ of habeas corpus, which alleged that
his first and second habeas counsel rendered ineffective
assistance. On appeal, the petitioner claims that the
court erred in rejecting his claim that his prior habeas
attorneys were ineffective in not pursuing the claim
that his trial and appellate counsel were ineffective for
their failure to challenge the trial court’s jury instruc-
tions as to (1) the element of intent required for the
specific offenses alleged against him and (2) his affirma-
tive defense of mental disease or defect. We disagree
and, accordingly, affirm the judgment of the habeas
court.
The following facts, as set forth by our Supreme Court
in the petitioner’s direct appeal, and procedural history
are relevant to our resolution of the petitioner’s claims.
‘‘Between 3 and 3:30 a.m. on August 27, 1994, the [peti-
tioner], while driving his gray Pontiac Grand Prix,
approached Leanne Kollar on Middle Street in Bridge-
port. Kollar, who was working as a prostitute, entered
the [petitioner’s] car in anticipation of engaging in sex
for money. The [petitioner] drove around Bridgeport,
eventually stopping on Salem Street. He turned off the
engine and locked the doors to the vehicle. The [peti-
tioner] then began to choke Kollar, telling her that, if
she removed her clothes, he would not hurt her. Kollar
began to undress, and the [petitioner] reclined her seat
back and started to choke her again. Kollar managed
to open the car door in an attempt to escape, and the
[petitioner] began hitting and punching her. They both
rolled out of the car together, after which the [peti-
tioner] kneeled over Kollar and continued strangling
her. After hitting the [petitioner] and knocking [the peti-
tioner’s] eyeglasses off his face, Kollar was able to flee
to a nearby house. The [petitioner] then drove away.
‘‘When the police arrived, Kollar gave them a descrip-
tion of the [petitioner] and told the officers where the
[petitioner] lived, as she had been to his apartment on
prior occasions. The police went to the [petitioner’s]
apartment and waited for him to return. Meanwhile,
the [petitioner] returned to Middle Street and picked
up Jennifer Williamson, another prostitute. The [peti-
tioner] drove to the corner of Maplewood and Laurel
Avenues, where he and Williamson engaged in a physi-
cal struggle. The [petitioner] hit Williamson, bit her
on the back and strangled her. During the struggle,
Williamson stopped moving and the [petitioner] pushed
her out of the car and drove away.
‘‘Sara Iza, a resident of Laurel Avenue, saw the [peti-
tioner’s] car on Maplewood Avenue at approximately
5:30 a.m. on August 27, 1994. When her husband, Luis
Iza, went outside to start his car at approximately 6
a.m., he saw Williamson’s naked body lying in the street,
in the same spot where Sara Iza had seen the [petition-
er’s] car stop earlier. Malka Shah of the [O]ffice of the
[C]hief [M]edical [E]xaminer testified that Williamson
died from asphyxia, which had been caused by strangu-
lation.
‘‘At his trial, the [petitioner] raised the defenses of
mental disease or defect and, alternatively, extreme
emotional disturbance. The jury rejected these defenses
and found the [petitioner] guilty of the murder of Wil-
liamson and the attempted murder and unlawful
restraint of Kollar.’’2 (Footnotes omitted.) State v. Kad-
dah (Kaddah I), 250 Conn. 563, 565–66, 736 A.2d 902(1999). Our Supreme Court subsequently affirmed the
petitioner’s conviction on direct appeal. See id., 581.
‘‘In 2001, the petitioner, represented by [A]ttorney
Salvatore Adamo, filed his first petition for a writ of
habeas corpus, alleging that his appellate counsel,
[A]ttorney Glenn Falk, had rendered ineffective assis-
tance in the direct appeal of the underlying criminal
case because he had failed to argue the existence of a
conflict between the petitioner and his trial attorney,
James Ruane, and had failed to raise a Connecticut
constitutional claim. The petitioner further alleged that
Ruane had rendered ineffective assistance in the under-
lying criminal case. The petitioner alleged, among other
things, that Ruane had asserted the defense of mental
disease or defect against the petitioner’s wishes, did
not permit the petitioner to testify on his behalf and
failed to argue effectively against the sparse medical
evidence used to convict the petitioner. The court,
White, J., denied the habeas petition. The petitioner
appealed from the judgment of the habeas court but
withdrew the appeal before this court rendered judg-
ment.’’ Kaddah v. Commissioner of Correction, 105
Conn. App. 430, 433–34, 939 A.2d 1185, cert. denied,
286 Conn. 903, 943 A.2d 1101 (2008).
In 2004, the petitioner, represented by Attorney
Joseph Visone, filed a second habeas petition alleging
ineffective assistance of counsel by Adamo in the first
habeas proceeding.3 Id., 434. The habeas court, Fuger,
J., denied that petition, along with the petitioner’s peti-
tion for certification to appeal. Id. This court subse-
quently dismissed the petitioner’s appeal from the
denial of the second habeas petition, concluding that
Judge Fuger had not abused his discretion in denying
the petition for certification to appeal. See id., 446.
The petitioner filed the third and present habeas peti-
tion on September 28, 2012, alleging, inter alia,4 that
Visone rendered ineffective assistance while represent-
ing the petitioner in the second habeas petition by fail-
ing to raise certain claims regarding the jury instruc-
tions at his criminal trial. See Kaddah v. Commissioner
of Correction (Kaddah III), 324 Conn. 548, 553, 153
A.3d 1233 (2017). More specifically, the petitioner
argued that the trial court improperly instructed the
jury as to (1) the element of intent required to prove
the specific crimes charged by the state and (2) his
affirmative defense of mental disease or defect. The
habeas court initially dismissed the petition on Septem-
ber 29, 2014, concluding that it was ‘‘not cognizable as
a matter of law.’’ Id., 551. Our Supreme Court subse-
quently reversed in part the judgment of the habeas
court and remanded the case to that court for further
proceedings. See id., 571.
On remand, the habeas court conducted a trial on the
present petition on October 2, 2018. The parties waived
their right to present additional evidence and stipulated
to the claims being resolved based on the record of
the prior habeas trial, of which the court took judicial
notice. On March 13, 2019, the court issued a memoran-
dum of decision in which it denied the petitioner’s
habeas petition. The court granted the petitioner’s
request for certification to appeal, and this appeal fol-
lowed. Additional facts will be set forth as necessary.
Before considering the petitioner’s claims, we note
the well established precepts that govern our review.
‘‘The [ultimate] conclusions reached by the [habeas]
court in its decision [on a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous. . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction
that a mistake has been committed. . . . A reviewing
court ordinarily will afford deference to those credibil-
ity determinations made by the habeas court on the
basis of [the] firsthand observation of [a witness’] con-
duct, demeanor and attitude.’’ (Internal quotation marks
omitted.) Noze v. Commissioner of Correction, 177
Conn. App. 874, 885–86, 173 A.3d 525 (2017).
‘‘In Lozada [v. Warden, 223 Conn. 834, 842–43, 613
A.2d 818 (1992)], our Supreme Court established that
habeas corpus is an appropriate remedy for the ineffec-
tive assistance of appointed habeas counsel, authoriz-
ing what is commonly known as a habeas on a habeas,
namely, a second petition for a writ of habeas corpus
. . . challenging the performance of counsel in litigat-
ing an initial petition for a writ of habeas corpus . . .
[that] had claimed ineffective assistance of counsel at
the petitioner’s underlying criminal trial or on direct
appeal. . . . Nevertheless, the court in Lozada, also
emphasized that a petitioner asserting a habeas on a
habeas faces a herculean task . . . .’’ (Internal quota-
tion marks omitted.) Lebron v. Commissioner of Cor-
rection, 204 Conn. App. 44, 50, 250 A.3d 44, cert. denied,
336 Conn. 948, 250 A.3d 695 (2021). ‘‘To prevail on an
ineffective assistance of habeas counsel claim . . . the
petitioner must prove both (1) that his appointed habeas
counsel was ineffective, and (2) that his trial counsel
was ineffective. . . . As to each of these 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 deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it can-
not 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 . . . .’’ (Internal
quotation marks omitted.) Crawley v. Commissioner
of Correction, 194 Conn. App. 574, 581–82, 221 A.3d 849(2019), cert. denied, 334 Conn. 916, 222 A.3d 104 (2020).
‘‘To satisfy the performance prong of the Strickland
test, the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . .
‘‘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 [peti-
tioner] 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 proceedings. . . . 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. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome.’’ (Emphasis added; internal quo-
tation marks omitted.) Wargo v. Commissioner of Cor-
rection, 144 Conn. App. 695, 701–702, 73 A.3d 821 (2013),
appeal dismissed, 316 Conn. 180, 112 A.3d 777 (2015).
I
The petitioner first claims that he was prejudiced by
Adamo’s and Visone’s failures to argue that Ruane’s
and Falk’s decisions not to challenge the instruction
provided to the jury at his criminal trial on the intent
element of the charged offenses constituted ineffective
assistance of counsel. We disagree.
The following additional facts are relevant to this
claim. While instructing the jury on intent, the trial court
twice included the definition of general intent, stating
that ‘‘a person acts intentionally with reference or
respect to a result or to conduct described by the statute
defining the offense when the person’s conscious objec-
tive is to cause such result or to engage in such con-
duct’’; (emphasis added); but thereafter specified that,
to find the petitioner guilty of murder, it must find
beyond a reasonable doubt that he killed Williamson
‘‘and that he did so with the specific intention of doing
so.’’5 Immediately preceding this comment, while instruct-
ing the jury as to murder, the court explained that the
state was required to prove that, in causing Williamson’s
death, ‘‘he did so with the intent to cause her death. In
other words, is that what he intended to do, to cause
her death?’’
After it concluded its instruction on intent, the court
instructed the jury, with respect to the crime of attempt
to commit murder, that the petitioner ‘‘must have acted
here with the intent to commit the crime of murder,
and specific intent is the intent to kill.’’ The court contin-
ued: ‘‘It is not enough to show that the [petitioner] acted
intending to do some other unspecified criminal act.
He must have acted with the same intent, the same
state of mind required for the crime of murder which
I have just explained to you. I refer you again to my
earlier charge on intent and what it means and how it
is to be proven and what the intent is that is required
for the crime of murder.’’ During its deliberations, the
jury sent a note asking the court: ‘‘What is intent?’’ In
response, the trial court restated its prior instruction to
the jury, which included the definitions of both specific
intent and general intent. However, the court finished
the instruction by reminding the jury: ‘‘Intent can be
formed in an instant, but to convict anyone of murder
the intent must be to cause death . . . .’’ (Emphasis
added.)
The petitioner’s trial counsel, appellate counsel, and
two previous habeas attorneys did not object to or raise
any challenge concerning the court’s instructions on
intent. In the present case, the habeas court concluded
that, although the trial court included the definition
of general intent on two occasions in its initial and
supplemental intent instructions, the overall instruction
did not mislead the jury into believing that it could find
the petitioner guilty without finding that he had the
specific intent to kill. We agree.
We begin by noting that ‘‘[t]he specific intent to kill
is an essential element of the crime of murder [and
attempt to commit murder]’’; State v. DeBarros, 58
Conn. App. 673, 680, 755 A.2d 303, cert. denied, 254
Conn. 931, 761 A.2d 756 (2000); and that ‘‘unlawful
restraint in the first degree requires that the defendant
had the specific intent to restrain the victim.’’ State v.
Williams, 172 Conn. App. 820, 828, 162 A.3d 84, cert.
denied, 326 Conn. 913, 173 A.3d 389 (2017).
General Statutes § 53a-3 (11) provides: ‘‘A person acts
‘intentionally’ with respect to a result or to conduct
described by a statute defining an offense when his
conscious objective is to cause such result or to engage
in such conduct . . . .’’ As this court has observed,
‘‘[t]he definition of intent as provided in § 53a-3 (11)
embraces both the specific intent to cause a result and
the general intent to engage in proscribed conduct. . . .
[I]t is improper for a court to refer in its instruction to
the entire definitional language of § 53a-3 (11), including
the intent to engage in conduct, when the charge relates
to a crime requiring only the intent to cause a specific
result. . . . This court has further noted, however, that
in cases in which the entire definition of intent was
improperly read to the jury, the conviction of the crime
requiring specific intent almost always has been upheld
because a proper intent instruction was also given.’’
(Internal quotation marks omitted.) State v. Tok, 107
Conn. App. 241, 269–70, 945 A.2d 558, cert. denied, 287
Conn. 919, 951 A.2d 571 (2008), and cert. denied sub
nom. State v. Jourdain, 287 Conn. 920, 951 A.2d 570(2008).
Moody v. Commissioner of Correction, 127 Conn.
App. 293, 14 A.3d 408, cert. denied, 300 Conn. 943, 17
A.3d 478 (2011), is instructive in this regard. In Moody,
the petitioner claimed that his trial counsel rendered
ineffective assistance in failing to object to the trial
court’s decision to instruct the jury on the entire statu-
tory definition of intent, rather than on specific intent
only. Id., 303. The petitioner contended that the alleg-
edly improper instruction regarding intent ‘‘allowed the
jury to find him guilty without finding that he intended
to cause the specific result’’ and asserted that the jury’s
notes demonstrated this prejudicial impact. Id., 304.
While we acknowledged that it is improper for a court
to refer in its instruction to the entire definitional lan-
guage of § 53a-3 (11) for a specific intent crime, we
emphasized that reversal of the trial court’s judgment
is not required when a proper instruction on intent is
provided. Id., 305.
In Moody, this court noted that the trial court had
provided the entire statutory definition of intent to the
jury only once in a preliminary and general instruction.
See id., 306. As we explained: ‘‘Although the court
referred back to this instruction three times, it did not
repeat the statutory language. Thereafter, the court
expressly stated the specific intent element of murder
eleven times and assault three times. It also expressly
pointed out that specific intent was an element of mur-
der but not of manslaughter in the first degree. Reading
the charge as a whole, we do not find it reasonably
possible that the jury was misled. Nor, contrary to the
petitioner’s assertion, do we conclude that the jury
notes demonstrate that the jury was misled. The notes
refer to the notion of transferred intent, not the requisite
mental state required for culpability.’’ Id. The court
concluded that, because the petitioner’s claim had no
reasonable probability of success on direct appeal, he
was not prejudiced by his appellate counsel’s failure to
raise it. See id.
Although the court in the present case referenced
general intent twice in its initial and supplemental
charges, those references were followed by correct
instructions concerning the specific intent necessary
to commit murder. See, e.g., State v. Austin, 244 Conn.
226, 236, 710 A.2d 732 (1998) (no reversible error when
improper intent instruction was followed by numerous
proper instructions on elements of murder); cf. State
v. Lopes, 78 Conn. App. 264, 271–72, 826 A.2d 1238(reversible error when improper intent instruction was
given directly in regard to elements of murder and not
followed by numerous proper instructions), cert.
denied, 266 Conn. 902, 832 A.2d 66 (2003), and cert.
denied, 266 Conn. 902, 832 A.2d 66 (2003); State v.
DeBarros, supra, 58 Conn. App. 683–84 (reversible error
when improper intent instruction not only was given
in initial and two supplemental charges but also was
referred to seven additional times).
Our careful review of the court’s entire charge per-
suades us that, as in Moody, any possible risk that the
jury was misled about the element of intent was elimi-
nated by the trial court’s numerous proper instructions
on the element of intent in the crimes of murder, attempt
to commit murder, and unlawful restraint. Specifically,
the court stated to the jury both in its murder and
attempt to commit murder charges that, to find the
petitioner guilty of these charges, the state must prove
beyond a reasonable doubt that he intended to cause
the death of Williamson and Kollar. Under the circum-
stances, we conclude that ‘‘[i]t strains reason to believe
that the jury could have [understood] the challenged
instruction as not requiring that the state prove beyond
a reasonable doubt that the [petitioner] intended to kill
[the victims].’’ (Internal quotation marks omitted.) State
v. Austin, supra, 244 Conn. 237. With respect to the
unlawful restraint charge, the court also stated during
its charge that the state was required to prove beyond
a reasonable doubt that the petitioner specifically
intended to restrain Kollar. Furthermore, while later
instructing the jury as to the petitioner’s intoxication
defense, the court associated the specific intent
required to prove murder and attempt to commit mur-
der with unlawful restraint, stating: ‘‘Certainly the crime
of murder, attempted murder and unlawful restraint all
have a specific intent requirement . . . .’’ The court
added that, if the jury concluded that the petitioner was
intoxicated at the time of the offenses, it could take
that fact into consideration in determining whether he
was ‘‘incapable of forming the required specific intent,
which is a necessary element for the commission of
the various crimes which I have defined for you.’’
(Emphasis added.) Because the petitioner’s claim had
no reasonable probability of success on appeal, we con-
clude that the petitioner was not prejudiced by any
failure of Adamo and Visone to allege that Ruane and
Falk rendered ineffective assistance with respect to that
claim in the petitioner’s prior proceedings.
II
The petitioner’s second claim is that Adamo and
Visone rendered ineffective assistance by failing to chal-
lenge Ruane’s and Falk’s choices not to dispute the trial
court’s instruction on the affirmative defense of mental
disease or defect. The respondent, the Commissioner of
Correction, argues that, because no prejudice resulted
from the failure to challenge the instruction, the peti-
tioner cannot establish the second prong of Strickland.
We agree with the respondent.
The following additional facts are relevant to the
petitioner’s claim. At his criminal trial, the petitioner
raised the affirmative defense of mental disease or
defect. As our Supreme Court noted in Kaddah I, ‘‘[the
petitioner] adduced testimony establishing that, three
months prior to the assaults, his wife had been shot in
the chest during a robbery at a convenience store and
she had remained hospitalized with serious injuries. He
also presented evidence that, one week prior to his
arrest, he had been attacked by an unknown individual
and that the resulting injury required fifty-two stitches
in his back. There was testimony that, on the night in
question, the [petitioner] had been drinking heavily and
was very upset about the recent loss of his passport.’’
Kaddah I, supra, 250 Conn. 577. James Merikangas, a
psychiatrist and neurologist called by the petitioner,
testified that the petitioner ‘‘suffered from brain dam-
age, hypoglycemia, and epilepsy. Merikangas further
testified that alcohol interferes with an epileptic’s abil-
ity to modulate behavior, and that the combination of
low blood sugar and alcohol could inhibit the nervous
system to the extent that a person ‘would not know
what he was doing.’ ’’ Id. Merikangas further opined
that the petitioner’s medical conditions ‘‘ma[de] it
impossible for him to plan, deliberate and act ratio-
nally’’; and, in his opinion, the petitioner was ‘‘literally
out of his mind,’’ ‘‘was not able to control his conduct,’’
and ‘‘did not have an appreciation for what was going
on.’’
During its charge to the jury, the court gave the fol-
lowing instruction on the mental disease or defect
defense: ‘‘In any prosecution for an offense, it shall be
an affirmative defense that the defendant, at the time
he committed the proscribed act or acts, lacked the
substantial capacity as the result of mental disease or
defect to conform his conduct within the requirements
of the law.’’ (Internal quotation marks omitted.) The
court continued: ‘‘There are basically two elements of
this affirmative defense: 1. That at the time the [peti-
tioner] was committing the proscribed act he had a
mental disease or defect and, 2., that as a result of
that mental disease or defect he lacked the substantial
capacity to control his conduct within the requirements
of the law.’’ The court did not instruct the jury that it
also could acquit the petitioner if it determined that,
due to mental disease or defect, he lacked substantial
capacity ‘‘to appreciate the wrongfulness of his con-
duct.’’ Although the court did not charge the jury with
respect to the cognitive prong, the petitioner’s trial
counsel neither requested such an instruction nor objected
to the charge provided by the court at trial, and the
petitioner’s appellate counsel and two prior habeas
attorneys did not raise any claim with respect thereto.6
In its memorandum of decision, the habeas court
concluded that the evidence of guilt was ‘‘overwhelming
and uncontroverted, and the evidence the petitioner
offered in the way of [his] affirmative defense was insuf-
ficient to overcome it.’’ Therefore, the petitioner failed
to establish the requisite prejudice from ‘‘[a]ny error’’
in the court’s instruction on the mental disease or defect
defense. The petitioner now challenges the propriety
of that determination.
Our analysis begins with the relevant statute that
governs the mental disease or defect defense. General
Statutes § 53a-13 (a) provides that, ‘‘[i]n any prosecution
for an offense, it shall be an affirmative defense that
the defendant, at the time the defendant committed the
proscribed act or acts, lacked substantial capacity, as
a result of mental disease or defect, either to appreciate
the wrongfulness of his conduct or to control his con-
duct within the requirements of the law.’’ As this court
has observed, ‘‘the affirmative defense of mental dis-
ease and defect pursuant to [§] 53a-13 (a), otherwise
known as the insanity defense . . . has both a cogni-
tive and a volitional prong. . . . Under the cognitive
prong [of the insanity defense], a person is considered
legally insane if, as a result of mental disease or defect,
he lacks substantial capacity . . . to appreciate the
[wrongfulness] of his conduct. . . . Under the voli-
tional prong, a person also would be considered legally
insane if he lacks the substantial capacity . . . to [con-
trol] his conduct to the requirements of the law.’’ (Inter-
nal quotation marks omitted.) State v. Weathers, 188
Conn. App. 600, 607, 205 A.3d 614 (2019), aff’d, 339
Conn. 187, 260 A.3d 440 (2021).
On our careful review of the record, we conclude
that there was not a reasonable probability that, but
for the absence of an instruction on the cognitive prong
in the petitioner’s affirmative defense of mental disease
and defect, the result of the proceeding would have
been different. Cf. Wargo v. Commissioner of Correc-
tion, supra, 144 Conn. App. 702. In its memorandum
of decision, the habeas court specifically found that
Merikangas’ testimony was ‘‘entirely discredited during
the state’s [cross-examination].’’7
Our own review of the state’s cross-examination sup-
ports the habeas court’s conclusion. First, Merikangas
admitted that, before he met or evaluated the petitioner,
he authored a letter to the petitioner’s counsel, stating
that, after listening to the petitioner’s police interroga-
tion, he believed that the petitioner had been ‘‘ ‘coached’ ’’
in advance by the police. Merikangas also admitted that,
when he interviewed the petitioner, he met with him
for only ninety minutes and never asked the petitioner:
(1) for a mental health or medical history, (2) what, if
anything, he remembered about the events of August
27, 1994, or (3) if he had, in fact, been coached by
the police, as Merikangas initially believed. Moreover,
Merikangas conceded that the petitioner was ‘‘an over-
achieving student and athlete through high school,’’ had
obtained college credits, and always held regular
employment, despite his brain damage. Most tellingly,
Merikangas was unable to identify any medical evidence
that either hypoglycemia or an epileptic seizure was
connected to homicidal behavior.8 Thereafter, the state
offered Karen Brody, a psychiatrist, as a rebuttal wit-
ness, who contradicted Merikangas’ opinion. See Kad-
dah I, supra, 250 Conn. 577–78. The jury thus was left
to determine which of the two experts it believed—a
proverbial battle of the experts.
Although the habeas court did not have the opportu-
nity to evaluate the demeanor of either Merikangas or
Brody on the witness stand, it remains the exclusive
province ‘‘of the habeas court, as the trier of fact, to
consider, sift, and weigh all the evidence’’ before it.
(Internal quotation marks omitted.) Houghtaling v.
Commissioner of Correction, 203 Conn. App. 246, 279,
248 A.3d 4 (2021). It is axiomatic that the habeas court’s
proper review of the evidence necessarily includes its
review of the transcripts of a petitioner’s criminal trial.
See, e.g., Chase v. Commissioner of Correction, 210
Conn. App. 492, 500, 270 A.3d 199 (2022) (court relied
in part on petitioner’s criminal trial transcripts to assess
trial counsel’s performance and strategic choices). In
its review of the record, which included the challenges
to Merikangas’ credibility and the ultimate outcome
reached by the jury, the court reasonably determined
that Merikangas’ opinion was likely not perceived as
credible to the jury. Accordingly, the court’s finding that
Merikangas’ testimony was ‘‘thoroughly discredited’’ on
cross-examination is not clearly erroneous.
Moreover, we reiterate that, as this court has held,
‘‘[i]n making [the] determination [of whether counsel’s
performance resulted in prejudice at a petitioner’s crim-
inal trial], a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge
or the jury. . . . Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict
or conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support. . . . [T]he ulti-
mate focus of inquiry must be on the fundamental fair-
ness of the proceeding whose result is being challenged.
. . . The benchmark for judging any claim of ineffec-
tiveness must be whether counsel’s conduct so under-
mined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a
just result.’’ (Internal quotation marks omitted.) Antwon
W. v. Commissioner of Correction, 172 Conn. App. 843,
870–71, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164
A.3d 680 (2017); see also Gaines v. Commissioner of
Correction, 306 Conn. 664, 688, 51 A.3d 948 (2012) (‘‘In
order to prevail on a claim of ineffectiveness of counsel,
the 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.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome. . . . [T]he
question is whether there is a reasonable probability
that, absent the [alleged] errors, the [fact finder] would
have had a reasonable doubt respecting guilt.’’ (Citation
omitted; internal quotation marks omitted.)).
Given the substantial evidence in support of the peti-
tioner’s guilt and the aforementioned challenges to the
petitioner’s expert witness’ credibility, we cannot con-
clude that, but for trial counsel’s failure to request the
petitioner’s preferred instruction, there is a reasonable
probability that the petitioner would not have been
convicted. See Anton W. v. Commissioner of Correc-
tion, supra, 172 Conn. App. 872 (in light of ‘‘totality of
the evidence admitted in the petitioner’s criminal trial,’’
possible instructional error ‘‘had no effect on the jury’s
decision to credit’’ relevant testimony).
Accordingly, the habeas court properly determined
that, regardless of trial counsel’s actions with respect
to the language omitted in the instruction on the affirma-
tive defense of mental disease or defect, the outcome
of the petitioner’s criminal trial would not have differed
in any way. For that reason, the habeas court properly
concluded that the petitioner failed to meet his burden
with respect to the prejudice prong of Strickland.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the petitioner’s first name has been spelled ‘‘Nabil’’ in other
appellate decisions. See Kaddah v. Commissioner of Correction, 299 Conn.
129, 130, 7 A.3d 911 (2010); State v. Kaddah, 250 Conn. 563, 564, 736 A.2d
902 (1999); Kaddah v. Commissioner of Correction, 105 Conn. App. 430,
431, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008). In
the present case, we use the spelling ‘‘Nabeel’’ for consistency with the
pleadings. See Kaddah v. Commissioner of Correction, 324 Conn. 548, 551
n.1, 153 A.3d 1233 (2017).
2
The petitioner was convicted of murder in violation of General Statutes
§ 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a-
49 and 53a-54a, and unlawful restraint in the first degree in violation of
General Statutes § 53a-95 (a). State v. Kaddah, supra, 250 Conn. 564.
3
The petitioner also filed a series of unsuccessful habeas petitions in
federal court; see Kaddah v. Brighthaupt, United States District Court,
Docket No. 3:11-cv-1809 (SRU) (D. Conn. August 6, 2013); Kaddah v. Lee,
United States District Court, Docket No. 3:08cv519 (SRU) (D. Conn. October
7, 2008); Kaddah v. Strange, United States District Court, Docket No.
3:00CV1642 (CFD) (D. Conn. January 18, 2001); which do not affect our
analysis in this appeal.
4
We note that the operative pleading with respect to the third habeas
petition includes six counts claiming ineffective assistance of counsel in
connection with the criminal trial, the direct appeal, and the two prior
habeas petitions. On the first day of trial, the habeas court, acting sua sponte,
dismissed counts one, two, four, and five of the amended petition, which
alleged ineffective assistance of counsel in connection with the criminal
trial and the direct appeal but did not pertain to prior habeas counsel. See
Kaddah v. Commissioner of Correction, 324 Conn. 548, 551–52 n.4, 153
A.3d 1233 (2017). The petitioner does not challenge the propriety of this
decision on appeal to this court.
5
The court’s instruction to the jury was as follows: ‘‘I am now going to
define for you under Connecticut law what intent is. I am going to read this
definition only one time to you, although it will apply many times during
the balance of this charge because at least five of these crimes or lesser
included offenses require an intent element, and therefore this definition
that I am going to give you will apply whenever you hear the word ‘intent’
or whenever you hear an element of a specific intent to do something.
‘‘This is the definition we are talking about. . . . Our statute provides
that a person acts intentionally with reference or respect to a result or to
conduct described by the statute defining the offense when the person’s
conscious objective is to cause such result or to engage in such conduct.
Intentional conduct is purposeful conduct rather than conduct that is acci-
dental or inadvertent.
‘‘Now intent is a mental process. Intention can only in most cases be
proven by the actions and statements of the person whose acts are being
examined. No one can be expected to come into court and testify that he
looked into another person’s mind and saw therein a certain intention. It
is often impossible and never necessary to prove criminal intent by
direct evidence.
‘‘Intent may be and usually is proven by the circumstantial evidence as
I have explained that term to you. Therefore, one way in which the jury
can determine what a person’s intention was at any given time is first by
determining what the person’s conduct was, including any statements he
or she made and what circumstances were surrounding that conduct, and
then from that conduct and those circumstances inferring what his or her
intention was.
‘‘In other words, a person’s intention may be inferred from his conduct.
You may infer from the fact that the [petitioner] engaged in conduct, that
he intended to engage in that conduct. You should infer such conduct only
if you are satisfied of it beyond a reasonable doubt.
‘‘This inference is not a necessary one. That is, you are not required to
infer intent from the accused’s conduct, but it is an inference that you may
draw if it is reasonable and a logical inference. I remind you that the burden
of proving intent beyond a reasonable doubt is always upon the state.
‘‘Do not be confused by the word ‘intent.’ It does not require any specific
length of time to form an intent. Intent can be formed in an instant, but to
convict anyone of murder the intent must be to cause death, and in summary
in order for the accused to be found guilty of murder, you must find proven
beyond a reasonable doubt that the [petitioner] killed Jennifer Williamson
and that he did so with the specific intention of doing so.’’ (Emphasis added.)
6
We note that the petitioner acknowledges in the present petition that
the two prongs of the mental disease or defect defense are disjunctive but
alleges deficient performance because, if counsel had requested a charge
on the cognitive prong, the trial court would have been required to give
that instruction based on the evidence. Although the petitioner does not
claim that trial counsel was deficient in pursuing the defense based on the
volitional prong, the petitioner nevertheless argues that there was no strate-
gic reason for failing to seek an instruction on the cognitive prong. Because
the habeas court did not make any factual findings as to the petitioner’s
claim of deficient performance, we do not address the question of whether
the decision not to challenge Ruane’s and Falk’s actions with respect to the
trial court’s instructions constituted deficient performance on the part of
Adamo or Visone. See, e.g., Small v. Commissioner of Correction, 286 Conn.
707, 716, 946 A.2d 1203 (‘‘[w]hen the record on appeal is devoid of factual
findings by the habeas court as to the performance of counsel, it is improper
for an appellate court to make its own factual findings’’), cert. denied sub
nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
7
The petitioner contends that this was an improper credibility determina-
tion on the part of the habeas court because Merikangas did not testify
during the habeas trial and, as a result, the habeas court was not able to
evaluate Merikangas’ demeanor. Because it is undisputed that the parties
had stipulated to the use of transcripts and exhibits, which constituted the
entirety of the evidence before the court, it is self-evident that the court
could not make a credibility determination. Thus, although the habeas court
used the term ‘‘discredited’’ in discussing the state’s cross-examination, we
construe this statement more appropriately as reflecting the court’s finding
as to the value of that testimony after considering and weighing Merikangas’
testimony in the context of the court’s review of the record, which finding
is subject to the clearly erroneous standard of review. See, e.g., Noze v.
Commissioner of Correction, supra, 177 Conn. App. 885–86.
8
We additionally note that, during the prosecutor’s cross-examination of
Merikangas, the following colloquy occurred:
‘‘[The Prosecutor]: [Quoting the petitioner’s testimony from the taped
interview with the inspector] ‘We start to talk before she took her clothes
off. Then, I don’t know. I was driving. I stop. I park my car. I don’t know
where, and remove to the back seat with her. She took off her clothes. I
don’t know. I tried to kiss her or something. Also, she ask me about money,
and I told her the same thing. I don’t—I—I don’t pay money for sex. Maybe
I told her. I don’t know exactly, but because I know I don’t pay money for
sex. I try to make sex with her. She doesn’t want. Then I don’t know how
she hit me in my eyes, and this moment I feel pain in my eyes. I don’t
remember. I hit her, and she bite me.’ Are you suggesting that that short
area is something that [the petitioner] would have memorized based upon
what police officers had told him before they turned the tape on?
‘‘[Merikangas]: No. . . .
‘‘[The Prosecutor]: You have testified, Doctor, that having heard the audio-
tape, it was in fact played to the jury earlier, that in your opinion the
[petitioner] was on that day actually unable to tell the police what had
happened?
‘‘[Merikangas]: The part you read to me had a dozen ‘I don’t know’s’ in
it, and that is my opinion, that he was not able to give an accurate description
of what happened.
‘‘[The Prosecutor]: You would consider anything he might have to say
reliable if it could be . . . verified by independently acquired information?
‘‘[Merikangas]: I wouldn’t consider it reliable as an index of his actual
thought processes and memory. There may be parts of it that are corrobo-
rated. . . .
‘‘[The Prosecutor]: For instance, Doctor, [the petitioner] on the tape tells
the police that both victims left his car naked leaving their clothing in his car.
‘‘[Merikangas]: Well, I think that there was clothing in his car. . . .
‘‘[The Prosecutor]: It turns out that their clothing was found in his car.
‘‘[Merikangas]: Well, that’s how he knew the clothing was in his car. They
found the clothing in his car.
‘‘[The Prosecutor]: That would not—that would indicate to you, Doctor,
would it not, that he could recall that fact they left his car naked; they left
their clothes in his car?
‘‘[Merikangas]: No, I wouldn’t draw that conclusion.
‘‘[The Prosecutor]: Doctor, [the petitioner] on that tape told the police
that he had been drinking two different brands of beer—
‘‘[Merikangas]: Right.
‘‘[The Prosecutor]: —Budweiser and Miller?
‘‘[Merikangas]: Right.
‘‘[The Prosecutor]: When the police officers actually removed the Bud-
weiser and Miller from that car just in March of this year, it turns out it is
Budweiser and Miller. Would that not indicate to you when he spoke to the
police on that tape he was able to recall the brands of beer he was drinking?
‘‘[Merikangas]: That’s possible.
‘‘[The Prosecutor]: [The petitioner], Doctor, on the tape told the police
that he bit the homicide victim, and he pointed out the location on her body
where he bit her. It turns out, when her body is found lying on the street
by the police officers, that she has bite marks right just about right where
[the petitioner] said you could find them. Wouldn’t that indicate that when
he was speaking to the police he could recall that segment of what he
had done?
‘‘[Merikangas]: I don’t recall the interaction around that particular seg-
ment. . . . I don’t see that kind of thing on the tape. I think the jury has
heard this tape if you say they heard it. . . .
‘‘[The Prosecutor]: . . . Would that not indicate that he could in fact
recall where he bit her?
‘‘[Merikangas]: It could indicate that.
‘‘[The Prosecutor]: The [petitioner] told the police when he departed the
first crime scene where there was a surviving victim, and describing it he
said there were some bushes up in the vicinity of the car. That’s on the
tape. It turns out that when the [petitioner’s] car is seized, some of those
bushes are hanging on the car. Would that not indicate he could recall at
least that much of what had occurred?
‘‘[Merikangas]: Apparently it would, yes.’’