Bharrat v. Commissioner of Correction , 167 Conn. App. 158 ( 2016 )

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GANESH BHARRAT v. COMMISSIONER
OF CORRECTION
(AC 37261)
Alvord, Prescott and Bear, Js.
Argued March 1—officially released July 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Douglas H. Butler, assigned counsel, for the appel-
lant (petitioner).
Megan L. Wade, certified legal intern, with whom
were Harry Weller, senior assistant state’s attorney,
and, on the brief, Gail P. Hardy, state’s attorney, and
Angela R. Macchiarulo, senior assistant state’s attor-
ney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Ganesh Bharrat,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal and by rejecting his claims that his
trial counsel provided ineffective assistance of counsel.
Having thoroughly reviewed the record, we conclude
that the habeas court properly denied the petition for
certification to appeal, and, accordingly, we dismiss
the appeal.
The following facts, as set forth by this court in the
petitioner’s direct appeal or found by the habeas court,
and procedural history are relevant to this appeal. ‘‘[O]n
December 24, 2005, the [petitioner] met the victim, Jose
Morales, in a bar. After conversing with the victim,
the [petitioner] accompanied the victim to the victim’s
apartment in Hartford. Later that evening, after the vic-
tim had fallen asleep, the [petitioner] entered the vic-
tim’s bedroom and stabbed the victim numerous times
with a knife, thereby causing his death. The [petitioner]
left the victim’s apartment with the keys to the victim’s
automobile as well as the victim’s wallet and cellular
telephone. The [petitioner] drove away from the scene
in the victim’s automobile, later renting the automobile
to Henry Garcia. The [petitioner] used the victim’s cellu-
lar telephone and, later, stashed the victim’s wallet and
house keys in the apartment where he had been living
at the time of the crimes. Later, police discovered the
murder weapon and the bloodstained clothing worn by
the [petitioner] at the time of the murder, both of which
contained the victim’s genetic material, in the [petition-
er’s] apartment. By means of statements that the [peti-
tioner] made to the police, he fully implicated himself
in the victim’s murder. Referring to the victim’s death,
the [petitioner] stated to the police, ‘He got what he
deserved. I did what I had to do.’ ’’ State v. Bharrat,
129 Conn. App. 1, 3–4, 20 A.3d 9, cert. denied, 302 Conn.
905, 23 A.3d 1243 (2011).
Following a jury trial, the petitioner was found guilty
of murder in violation of General Statutes § 53a-54a,
felony murder in violation of General Statutes § 53a-
54c, burglary in the first degree in violation of General
Statutes § 53a-101 (a) (1), and larceny in the third degree
in violation of General Statutes § 53a-124 (a) (1). The
trial court merged the petitioner’s sentence for his fel-
ony murder conviction with his sentence for his murder
conviction, and sentenced the petitioner to a total effec-
tive term of fifty-five years imprisonment.
The petitioner appealed to this court from the judg-
ment of conviction. He claimed on direct appeal ‘‘(1)
that the trial court improperly failed to deliver an
instruction on the defense of diminished capacity; (2)
that the court’s instruction concerning evidence of
intoxication, as it related to the crime of murder, was
deficient; (3) that the evidence was insufficient to prove
that he committed felony murder; and (4) that the court
improperly expanded the offense of felony murder.’’
Id., 3. This court affirmed the judgment of conviction.
In doing so, we specifically concluded, among other
things, that the trial court properly declined to instruct
the jury on the defense of diminished capacity because
the petitioner’s trial counsel failed to offer any evidence
from which the jury could infer that the petitioner was
incapable of forming the requisite intent to kill the vic-
tim on the ground of diminished capacity. Id., 12–16.
We also concluded that the petitioner waived his claim
that the court improperly expanded the offense of fel-
ony murder, because the petitioner’s trial counsel had
failed to take an exception to that portion of the jury
instruction. Id., 35.
Subsequently, on May 14, 2013, the petitioner filed an
amended petition for a writ of habeas corpus, alleging
ineffective assistance of trial counsel. The petitioner
alleged that the performance of his trial counsel,
Michael J. Isko,1 was deficient because he failed to
present expert psychiatric evidence at trial to establish
a diminished capacity defense, and because he failed
to object to the trial court’s jury instructions regarding
whether the burglary offense, which was the predicate
felony for the felony murder offense, could itself be
based on an intent to commit assault or an intent to
commit larceny. On June 9, 2014, the habeas court,
Fuger, J., held a trial in which it heard testimony from
Isko and Radhika Mehendru, a psychiatrist at the Insti-
tute of Living, who had evaluated the petitioner days
prior to the commission of the crimes.
After trial, the habeas court denied the petition for
a writ of habeas corpus. The court concluded that Isko’s
failure to offer expert testimony concerning the dimin-
ished capacity defense was not deficient performance
and did not prejudice the petitioner. The habeas court
further concluded that the petitioner had abandoned his
claim that Isko’s failure to object to the jury instructions
was ineffective assistance, and, even if this claim was
not abandoned, the petitioner had failed to establish
prejudice. The petitioner filed a petition for certification
to appeal from the judgment of the habeas court, which
the habeas court denied. This appeal followed. Addi-
tional facts will be set forth as necessary.
As an initial matter, we set forth the applicable stan-
dard of review and principles of law. ‘‘In Simms v.
Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United
States Supreme Court in Lozada v. Deeds, 498 U.S. 430,
431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as
the appropriate standard for determining whether the
habeas court abused its discretion in denying certifica-
tion to appeal. This standard requires the petitioner to
demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate
to deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then 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.) Taft v. Commissioner of Correction, 159
Conn. App. 537, 543–44, 124 A.3d 1, cert. denied, 320
Conn. 910, 128 A.3d 954 (2015).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment [to the United States constitution].
. . . To satisfy the prejudice prong, a claimant 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
claim will succeed only if both prongs are satisfied.’’
(Citations omitted; internal quotation marks omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
712–13, 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). ‘‘[A] court need not determine whether counsel’s
performance was deficient before examining the preju-
dice suffered by the defendant as a result of the alleged
deficiencies.’’ Strickland v. Washington, supra, 697.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
[T]he habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . The application of
the habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012).
I
The petitioner first claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal because it is debatable amongst jurists
of reason that Isko’s failure to offer expert testimony
regarding a diminished capacity defense constituted
deficient performance. Specifically, the petitioner con-
tends that had expert testimony been offered regarding
the mental disorder from which he allegedly suffered
at the time of the commission of the crimes, the trial
court would have instructed the jury on his diminished
capacity defense. The respondent, the Commissioner
of Correction, contends that the habeas court properly
concluded that Isko’s performance was not deficient
because his decision not to offer testimony from an
expert witness concerning a diminished capacity
defense was a reasonable, strategic decision. We agree
with the respondent.
The following additional facts and procedural history
are relevant to this claim. During the underlying crimi-
nal trial, Isko did not offer testimony from an expert
witness concerning the petitioner’s mental health at the
time of the commission of the crimes. Rather, Isko
attempted to establish through lay witnesses that the
petitioner had diminished capacity, and, thus, was inca-
pable of forming the requisite intent to commit murder.
To effectuate this strategy, Isko cross-examined Ser-
geant Timothy Shaw of the Hartford Police Department,
who testified that the petitioner had claimed to suffer
from bipolar disorder. Specifically, the petitioner had
told Shaw that he heard voices and that drinking water
felt like he was drinking blood. Isko also offered the
testimony of Annette Deonarine, a woman with whom
the petitioner claimed to be in a romantic relationship.
Deonarine testified at trial that not only had she never
been in a romantic relationship with the petitioner, but
that he was obsessed with her and was delusional, as
evidenced by his belief that he was in a romantic rela-
tionship with her. After the petitioner rested his case,
Isko requested that the jury be instructed on diminished
capacity. The court declined to instruct the jury on
diminished capacity, concluding that there was no evi-
dence to support such an instruction.
The habeas court determined that the petitioner had
alleged that Isko ‘‘was ineffective because he failed to
produce expert psychiatric evidence at trial to support
a jury instruction of diminished mental capacity in order
to support a jury instruction that his diminished mental
capacity precluded him from forming the requisite spe-
cific intent to commit [murder]. In support of this claim,
the petitioner presented [testimony from Mehendru and
Isko] . . . .
‘‘According to [Mehendru], she evaluated the peti-
tioner on December 14 and 19, 2005, merely days prior
to the offense date of December 24, 2005. The petitioner,
at the time she evaluated him, suffered from substance
induced mood disorder and antisocial personality disor-
der. [Mehendru] testified that someone with these disor-
ders nevertheless wilfully decides to break the law.
Although the petitioner reported hearing voices, he was
able to isolate his inner world from the real world.
Similarly, he reported hallucinatory images, but he had
no problems dealing with them. The petitioner did not
lose touch with reality even though he had a psychotic
symptom. The psychosis experienced by the petitioner
was not a primary feature or diagnosis. [Mehendru]
further noted that although the petitioner had difficul-
ties with impulsivity, she found his impulse control to
be adequate. The petitioner had made a suicide attempt
before and had suicidal ideations; however, he never
mentioned homicidal ideations. [Mehendru] also noted
that there were many inconsistencies in what the peti-
tioner self-reported and that she suspected that he was
malingering. On cross-examination, [Mehendru]
described the petitioner as manipulative and
demanding, and as someone who would push the limits
of what he could get away with. The petitioner,
according to [Mehendru], knew right from wrong and
chose to break the law.
‘‘The only other witness to present testimony about
asserting a diminished mental capacity defense was
[Isko]. According to [Isko], the defense team evaluated
whether a defense of mental disease or defect was a
viable defense. To that end, the defense team consulted
with an expert at Yale University, but that expert con-
cluded that the petitioner’s psychosis was drug induced
and, therefore, not a viable basis for a defense of mental
disease or defect [pursuant to General Statutes § 53a-
13 (b)].2 Similarly, a personality disorder also would
not support such a defense. . . . Isko further testified
that the defense team, which had the petitioner’s
records from the Institute of Living, looked at whether
there was a diminished mental capacity to form intent.
The petitioner’s behavior was drug driven, and his use
of drugs precluded diminished mental capacity from
being a viable defense.’’ (Footnotes altered.)
On the basis of this testimony, the habeas court con-
cluded that ‘‘the petitioner here has failed to present
any evidence that diminished mental capacity was a
viable and meritorious defense. Counsel investigated
and considered both mental disease and diminished
mental capacity defenses. These defenses, however,
were unsupported. The court concludes that the peti-
tioner has failed to prove that trial counsel rendered
deficient performance. Additionally, none of the evi-
dence presented in the habeas proceeding in any way
undermines this court’s confidence in the outcome of
the jury trial, which is necessary to prove the Strickland
prejudice prong.’’
With this factual and procedural history in mind, we
turn to the legal principles that guide our analysis. ‘‘In
any case presenting an ineffectiveness claim, the perfor-
mance inquiry must be whether counsel’s assistance
was reasonable considering all the circumstances. . . .
Judicial scrutiny of counsel’s performance must be
highly deferential and courts must indulge a strong pre-
sumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action might be con-
sidered sound trial strategy.’’ (Citation omitted; internal
quotation marks omitted.) Veal v. Warden, 28 Conn.
App. 425, 434, 611 A.2d 911, cert. denied, 224 Conn. 902,
615 A.2d 1046 (1992). ‘‘[S]trategic choices made after
thorough investigation of law and facts relevant to plau-
sible options are virtually unchallengeable; [but] strate-
gic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.’’ (Internal quotation marks omitted.)
Michael T. v. Commissioner of Correction, 319 Conn.
623, 632–33, 126 A.3d 558 (2015).
In deciding whether defense counsel’s decision to
pursue a diminished capacity defense without expert
testimony was a reasonable strategic decision, the fol-
lowing legal principles are relevant. ‘‘To establish a
violation of § 53a-54a,3 the crime of murder, the state
must prove beyond a reasonable doubt that the defen-
dant, with intent to cause the death of another person
. . . cause[d] the death of such person or of a third
person . . . . [T]he specific intent to kill is an essential
element of the crime of murder. To act intentionally,
the defendant must have had the conscious objective
to cause the death of the victim.’’ (Citation omitted;
footnote added; internal quotation marks omitted.)
State v. Aviles, 107 Conn. App. 209, 217, 944 A.2d 994,
cert. denied, 287 Conn. 922, 951 A.2d 570 (2008). ‘‘[T]he
inability to control one’s conduct within the require-
ments of the law that is not induced by voluntary intoxi-
cation is an affirmative defense [to murder pursuant to
§ 53a-13].’’ Copas v. Commissioner of Correction, 234
Conn. 139, 162, 662 A.2d 718 (1995).
‘‘If [a] defendant asserts a recognized legal defense
and the evidence indicates the availability of that
defense, such a charge is obligatory and the defendant
is entitled, as a matter of law, to a theory of defense
instruction. . . . The defendant’s right to such an
instruction is founded on the principles of due process.
. . . Before an instruction is warranted, however, [a]
defendant bears the initial burden of producing suffi-
cient evidence to inject [the defense] into the case. . . .
Conversely, the court has a duty not to submit to the
jury, in its charge, any issue upon which the evidence
would not reasonably support a finding.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Lynch,
287 Conn. 464, 470–71, 948 A.2d 1026 (2008). ‘‘To war-
rant consideration of diminished capacity . . . the
defendant must have presented evidence which might
have raised a reasonable doubt as to the existence of
the specified mental state.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Pagano, 23 Conn.
App. 447, 450, 581 A.2d 1058, cert. denied, 217 Conn.
802, 583 A.2d 132 (1990).
In a related context, this court has previously consid-
ered whether it is deficient performance for trial coun-
sel to not offer the testimony of an expert witness in
order to establish the defense of extreme emotional
disturbance. In Veal v. Warden, supra, 28 Conn. App.
434, the petitioner’s trial counsel failed to call an expert
witness at the underlying criminal trial. Id. At the habeas
trial in Veal, the petitioner’s trial counsel testified that
he had consulted two psychiatrists, who both found
that there was no clinical basis to support the defense
of extreme emotional disturbance. Id. On the basis of
this testimony, the habeas court held, and this court
agreed, that trial counsel’s decision did not constitute
deficient performance because it was a reasonable stra-
tegic decision that was made after thorough investiga-
tion. Id.In the present case, Isko similarly thoroughly investi-
gated a diminished capacity defense. He consulted with
an expert at Yale University, read the petitioner’s medi-
cal records from the Institute of Living, and spoke to
lay witnesses concerning the petitioner’s mental health.
After this thorough investigation, Isko made a strategic
decision not to call an expert witness at trial. The testi-
mony of Mehendru establishes that this strategic deci-
sion was reasonable because, even if an expert had
testified, such testimony likely would have established
that the petitioner’s mental health issues were caused
by voluntary intoxication, and, thus, could not be a
basis for establishing diminished capacity. Additionally,
expert testimony, if offered, likely would have tended
to show that near the time of the commission of the
crime, the petitioner had adequate impulse control and
wilfully decided to break the law, and, thus, was capable
of forming the requisite intent to commit murder.
In sum, Isko conducted a thorough investigation into
the petitioner’s mental health and, on the basis of that
investigation, made the reasonable, strategic decision
not to call an expert witness at the underlying criminal
trial. Accordingly, the habeas court did not abuse its
discretion by denying the petition for certification to
appeal because it is not debatable amongst jurists of
reason whether it was deficient performance for Isko
to make the reasonable, strategic decision to not offer
expert testimony regarding diminished capacity.
II
The petitioner next claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal because (1) he did not abandon his
claim that Isko provided ineffective assistance by failing
to object to the jury instruction on felony murder, and
(2) it is debatable amongst jurists of reason whether
he was prejudiced by Isko’s failure to object to the jury
instructions and the state’s closing argument regarding
the intent element of felony murder, and by his failure
to poll the jury regarding the intent element of felony
murder. Specifically, the petitioner contends that, on
the basis of a prior ruling at a probable cause hearing,
the jury should have been instructed that it could find
him guilty of felony murder only if it determined that
he had committed the murder in the course of a burglary
with the intent to commit larceny in the sixth degree,
and that it could not rely upon the alleged assault as a
predicate for the felony murder charge. Thus, according
to the petitioner, Isko’s performance was deficient, and
he was prejudiced by Isko’s actions because, had the
court properly instructed the jury, the jury would have
acquitted him of the felony murder charge on the ground
that there was insufficient evidence to support a finding
that he had the intent to commit a larceny.
The respondent argues that the petitioner abandoned
this claim at the habeas trial because he offered no
evidence regarding this claim. Alternatively, the respon-
dent contends that the petitioner failed to establish that
he was prejudiced by Isko’s failure to object to the jury
instruction and the state’s closing argument regarding
felony murder because it is unclear from the record
whether the jury found the petitioner guilty of felony
murder based upon a subordinate conclusion that he
had committed a burglary with the underlying intent to
commit an assault, or the underlying intent to commit
a larceny. Additionally, the respondent argues, in
response to the petitioner’s claim that he was preju-
diced, that there was sufficient evidence for the jury
reasonably to find that the petitioner had the intent to
commit larceny in the sixth degree. Although we agree
with the petitioner that he did not abandon this claim,
we decline to review his argument that he was preju-
diced by Isko’s actions because his argument on appeal
was not raised before the habeas court.4
The following additional facts, as found by the habeas
court, are relevant to this claim. ‘‘[T]he court, Sheldon,
J., held a probable cause hearing during which time
the state requested a finding of probable cause for the
crimes of murder and felony murder. At the conclusion
of the hearing, the prosecutor argued that there was
probable cause to find that the [petitioner] had killed
the victim in the course of or furtherance of committing
a burglary [in the first degree, and, thus, committed
felony murder].5 Concerning the burglary [in the first
degree],6 the prosecutor [alleged] that the [petitioner]
had remained unlawfully in the [victim’s] residence
while intending to commit an assault [in the third
degree]7 therein. The court expressed its belief that,
as a matter of law, it was improper for the burglary
underlying the felony murder count to be based upon
an intent to commit an assault. . . . Judge Sheldon
found probable cause with respect to felony murder
premised on a burglary by entering with the intent to
commit the crime of larceny [in the sixth degree],8 but
did not find probable cause as to felony murder prem-
ised on a burglary with the intent to commit an
assault. . . .
‘‘[T]he state charged the [petitioner] with having com-
mitted felony murder by causing the victim’s death in
the course of and in furtherance of the crime of bur-
glary. Just prior to closing arguments, the court, Mullar-
key, J., discussed the content of its charge. The court
referred to the fact that it had held charge conferences
with counsel that were not on the record. The court
referred to several topics that it had discussed with
counsel during those conferences, stating in relevant
part: I asked the state particularly . . . what crimes it
claimed were the underlying crimes of burglary, which
is an issue in both the burglary [in the first degree]
count and the felony murder count. . . . [The] state
indicated at that time that [it was] requesting larceny
[in the] sixth [degree] and assault [in the] third [degree]
as the specific crimes intended by the defendant for
[the] claim underlying the concept of burglary. There-
after, the court noted that it had given counsel copies
of its jury charge, noting that it wanted counsel to have
as much time as necessary to review the charge thor-
oughly. . . . After referring to these various matters
discussed at the charge conference, the court asked,
[d]oes anybody have any . . . summation, disagree-
ments, additions, subtractions from my summary of the
charge conference? At that time, [Isko] objected to the
court’s refusal to deliver an instruction regarding dimin-
ished capacity, but did not raise any other concerns or
objections to the matters specifically discussed by the
court, including the state’s requested instruction. After
a recess, the court asked counsel if they were ready to
proceed, and, following an affirmative reply by defense
counsel, it proceeded to closing arguments. . . .
‘‘[T]he prosecutor argued to the jury that, for pur-
poses of the felony murder count, the [petitioner] could
be found to have committed burglary if he unlawfully
remained in the victim’s residence while intending to
assault the victim or intending to steal from the victim.
Although the state clearly referred to the mental state
for the crimes of assault in the third degree and larceny
in the sixth degree, the crimes referred to by the court
in discussing the content of its charging conferences,
the [petitioner] did not object to this argument at any
time.
‘‘Later, the court instructed the jury that, for purposes
of the felony murder count, the [petitioner] could be
found to have committed burglary if he unlawfully
remained in the victim’s residence intending to commit
either assault in the third degree or larceny in the sixth
degree. At no time did the [petitioner] object to the
court’s instruction.’’ (Citations omitted; footnotes
added; internal quotation marks omitted.)
On direct appeal of his conviction to this court, the
petitioner claimed that the trial court failed to instruct
the jury properly regarding the elements of felony mur-
der, as limited by Judge Sheldon’s probable cause deter-
mination. State v. Bharrat, supra, 129 Conn. App. 29–32.
Specifically, he argued that because the court during
the probable cause hearing ruled that there was not
probable cause to charge the petitioner with felony
murder predicated on a burglary with an underlying
intent to commit an assault, the jury instructions on
felony murder should have directed the jury that it could
find the petitioner guilty only if it found that the state
proved beyond a reasonable doubt that the burglary
was committed with an underlying intent to commit a
larceny. Id., 32–34. Additionally, in support of his claim
that he was prejudiced by his counsel’s failure to object
to this instructional error, the petitioner claimed that
there was insufficient evidence to support a finding that
he had the requisite intent to commit larceny in the
sixth degree. Id., 27.
As to the claim regarding the jury instruction, we
held on direct appeal that such a claim was waived
because the petitioner did not take exception to the
jury instruction concerning the intent element of felony
murder. Id., 35. As to the sufficiency of the evidence
claim, on direct appeal we did not reach the merits
of the claim, but rather held that even if there was
insufficient evidence to find that the petitioner had the
requisite intent to commit larceny in the sixth degree
as the predicate intent to burglary in the first degree,
there was an alternative ground—intent to commit
assault in the third degree—upon which the jury could
have found that the petitioner committed burglary in
the first degree as a predicate for felony murder. Id., 28.
Subsequently, in his amended petition for a writ of
habeas corpus and his pretrial memorandum of law,
the petitioner ‘‘allege[d] that counsel was deficient for
failing to object at the charge conference to the pro-
posed felony murder instructions, as well as failing to
object to the state’s closing arguments. The petitioner
also allege[d] that counsel was deficient for failing to
ask the court to inquire of the jury as to whether [it]
found the predicate burglary to be based on the intent
to commit an assault, or whether the burglary was based
on the intent to commit a larceny. If the jury found it
to be based on an assault, counsel would further be
deficient for failing to move for a directed verdict of
not guilty on the charge of felony murder, since there
was no probable cause to charge the petitioner with
felony murder based on a predicate crime of burglary
with the intent to commit an assault in the burgled
premises.’’ (Internal quotation marks omitted.) The peti-
tioner did not argue to the habeas court that if the jury
had found him guilty of felony murder on the basis of
a predicate crime of burglary with an intent to commit
a larceny, there was insufficient evidence to support
such a finding of intent.
At the habeas trial, Isko testified that he did not object
to the jury instruction on felony murder. Isko stated
that he believed, but could not recall, that the petitioner
was convicted of felony murder predicated on a bur-
glary predicated on an intent to commit a larceny.
Because of this belief, Isko did not request that the
court poll the jury.
After Isko’s testimony, the petitioner rested, and the
respondent offered no additional witnesses. In closing
argument, the petitioner rested on his pretrial brief.
The respondent argued in regard to this claim that the
petitioner was not prejudiced by Isko’s failure to object
to the jury charge and the state’s closing argument
concerning felony murder because ‘‘it’s . . . obvious
that according to [Isko] and . . . the transcript, that
the felony murder was based on the items taken from
the home after the murder [i.e., intent to commit a
larceny].’’
In its memorandum of decision, the habeas court
deemed this claim abandoned: ‘‘At the habeas trial, the
petitioner did not present any evidence in support of
these allegations. [Although Isko testified that he did
not object to the jury instruction on this issue, Isko was
never questioned regarding his reason for not objecting,
and, thus, no evidence was offered from which the
court could infer whether Isko’s failure to object was
a reasonable, strategic decision.] The court, therefore,
deems them to have been abandoned. . . . However,
even [if] this court were to not consider these claims
to have been abandoned and that trial counsel were
presumed to have rendered deficient performance as
alleged, the petitioner’s claims would fail on the preju-
dice prong.
‘‘Judge Sheldon found probable cause [to believe]
that the petitioner committed murder on the theory
of felony murder, in that he committed a burglary by
entering with the intent to commit a crime of larceny
by theft of items [i.e., the keys to the victim’s car and
the car itself] belonging to [the victim]. . . . The jury
was informed of the charges at the onset of trial. The
third count charged the petitioner with burglary in the
first degree for [being] armed with a dangerous instru-
ment, to wit, a knife, remained unlawfully in [the vic-
tim’s] building with the intent to commit a crime therein.
. . . The fourth count charged the petitioner with lar-
ceny in the third degree for having the intent to deprive
[the victim] of property, a 1993 Mitsubishi automobile
. . . [and] wrongfully [taking and obtaining] said auto-
mobile from its owner and such . . . vehicle’s value
was less than $5000. . . .
‘‘The jury convicted the petitioner on all four counts
as charged: murder, felony murder, burglary in the first
degree, and larceny in the third degree. Thus, the jury
intrinsically and necessarily found the petitioner guilty
of the underlying crimes for the felony murder charge
for which Judge Sheldon found probable cause, i.e.,
felony murder premised on a burglary and the intent
to commit a larceny.
‘‘Based upon the foregoing, [the habeas court con-
cluded] that the petitioner has failed to show how he
was prejudiced by counsel’s failure to seasonably object
to the felony murder instructions and to the state’s
closing arguments, as well as for failing to ask the court
to inquire of the jury as to whether [it] found the predi-
cate burglary to be based on the intent to commit an
assault, or whether the burglary was based on the intent
to commit a larceny.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.)
A
We first address whether the petitioner abandoned
this claim at the habeas trial. Our standard of review
of a habeas court’s finding that a claim has been aban-
doned is plenary. Solek v. Commissioner of Correction,
107 Conn. App. 473, 479, 946 A.2d 239, cert. denied, 289
Conn. 902, 957 A.2d 873 (2008). There is a distinction
between abandoning a claim and failing on the merits
of a claim. A claim may be deemed abandoned in cases
in which a claim is not addressed during trial. See
Crocker v. Commissioner of Correction, 126 Conn. App.
110, 132, 10 A.3d 1079 (upholding habeas court’s conclu-
sion that ‘‘petitioner had abandoned [a] claim because
[1] it was not addressed in his posttrial brief and [2]
he failed to adduce evidence in support of the claim
during the habeas trial’’), cert. denied, 300 Conn. 919,
14 A.3d 333 (2011); Wooten v. Commissioner of Correc-
tion, 104 Conn. App. 793, 801, 936 A.2d 263 (2007) (claim
deemed ‘‘abandoned because the petitioner failed to
present any evidence in support of his position’’), cert.
denied, 289 Conn. 911, 957 A.2d 868 (2008). If evidence
and argument have been offered concerning a claim,
however, but the evidence is not sufficient to establish
an element of the claim, the claim fails on the merits.
See Davey B. v. Commissioner of Correction, 114 Conn.
App. 871, 876, 971 A.2d 735 (2009) (to succeed on merits
of ineffective assistance of counsel claim pursuant to
Strickland, petitioner must establish that counsel’s
actions did not constitute sound trial strategy).
Whether the petitioner abandoned this claim by fail-
ing to present it to the habeas court is a close question.
With respect to Isko’s failure to object to the jury
instruction on felony murder, the petitioner argued both
deficient performance and prejudice in his petition for
a writ of habeas corpus and in his pretrial memorandum
of law, which he relied on in lieu of making a closing
argument. Additionally, the petitioner questioned Isko
regarding whether he objected to the jury instruction
on felony murder, and why he did not seek to poll the
jury. The petitioner, however, did not question Isko as
to why he did not object to the jury instruction on
felony murder. For the purposes of this appeal, we
assume that the petitioner did not abandon this claim,
without deciding whether, as the habeas court con-
cluded, a party abandons a claim of ineffective assis-
tance of counsel in a case if trial counsel is not
questioned at the habeas trial concerning the reasons
behind his or her strategic decisions. Rather than treat-
ing this claim as abandoned, we conclude that it is
appropriate to address it because the habeas court
reached the merits of the claim, and both parties fully
have briefed it on appeal. Accordingly, there is no preju-
dice or surprise to either the habeas court or the parties
by this court in addressing the merits of the claim.
B
Next, we turn to the habeas court’s alternative ground
for concluding that the petitioner had not established
ineffective assistance of counsel concerning Isko’s fail-
ure to object to the jury instruction on felony murder.
The habeas court found, in the alternative, that the
petitioner failed to establish that he was prejudiced by
Isko’s failure (1) to object to the jury instruction and
the state’s closing argument regarding felony murder
predicated on an intent to commit an assault, or (2) to
request that the jury be polled. According to the habeas
court, the petitioner was not prejudiced by Isko’s
actions because it concluded that there was sufficient
evidence to support the petitioner’s felony murder con-
viction because he had committed a burglary with the
underlying intent to commit a larceny. On appeal, the
petitioner argues that the habeas court abused its dis-
cretion by denying his petition for certification to appeal
because it is debatable amongst jurists of reason that
he was prejudiced by Isko’s actions. Specifically, he
contends that he was prejudiced because if the jury
had been instructed that the felony murder charge could
be predicated only upon the intent to commit larceny,
it would have acquitted him of the felony murder
charge. He would have been acquitted of this charge,
according to the petitioner, because there was insuffi-
cient evidence to establish that he had the intent to
commit a larceny at the time he stabbed the victim.
The petitioner, however, argued in the habeas court
only that if the jury had found him guilty of felony
murder on the ground that he killed the victim in the
course of committing a burglary with the intent to com-
mit an assault, he was entitled to an acquittal of the
charge of felony murder. Because the argument that
the petitioner asserts on appeal was never made to
the habeas court, it is unpreserved, and we decline to
review it.
‘‘Our law is well settled that a party may not try its
case on one theory and appeal on another.’’ (Internal
quotation marks omitted.) Janusauskas v. Fichman,
264 Conn. 796, 807, 826 A.2d 1066 (2003); Rodriguez v.
State, 155 Conn. App. 462, 471 n.10, 110 A.3d 467, cert.
granted on other grounds, 316 Conn. 916, 113 A.3d 71(2015). Arguments asserted in support of a claim for
the first time on appeal are not preserved. See State v.
Jeffreys, 78 Conn. App. 659, 666–67, 828 A.2d 659 (if
argument in support of claim is different on appeal,
argument is not preserved and only reviewable if argu-
ment meets requirements of State v. Golding, 213 Conn.
233, 567 A.2d 823 [1989]), cert. denied, 266 Conn. 913,
866 A.2d 465 (2003), overruled in part on other grounds
by State v. Polanco, 308 Conn. 242, 248, 253, 61 A.3d
1084 (2013). Our Supreme Court has stated that ‘‘shift[s]
in arguments [on appeal are] troubling because, as [the
court] previously ha[s] noted, to review . . . claim[s]
. . . articulated for the first time on appeal and not
[raised] before the trial court, would [be nothing more
than] a trial by ambuscade of the trial judge.’’ (Internal
quotation marks omitted.) Neuhaus v. DeCholnoky, 280
Conn. 190, 216 n.18, 905 A.2d 1135 (2006).
At the habeas trial, the petitioner never made an
insufficiency of the evidence argument in regard to the
jury’s finding that he had the requisite intent to commit
a larceny as the predicate intent to burglary and felony
murder. The petitioner made no argument regarding
whether he would be entitled to an acquittal on the
charge of felony murder if the jury had found him guilty
of felony murder on the ground that he killed the victim
in the course of committing a burglary with the underly-
ing intent to commit a larceny.
Because the petitioner did not make this argument
to the habeas court, the habeas court made no determi-
nation as to whether there was sufficient evidence to
support a finding that he killed the victim in the course
of committing a burglary with the intent to commit a
larceny. The habeas court never was placed on notice
that a sufficiency of the evidence argument existed.
Accordingly, because this argument was never raised
in the habeas court, we conclude that it is unpreserved
and decline to review it.9
The appeal is dismissed.
In this opinion the other judges concurred.
1
The habeas court noted that ‘‘the amended petition [for a writ of habeas
corpus] allege[d] ineffective assistance only by . . . Isko, but the petitioner
was also represented by Attorney Bruce Lorenzen. While . . . Isko may
have been lead counsel . . . Lorenzen nevertheless was cocounsel and con-
ducted cross-examination of some witnesses. Because no allegations are
directed at Lorenzen, who did not testify at the habeas trial, the court limits
its discussion of any purported deficiencies to . . . Isko. Nevertheless,
because the petitioner’s legal claim is ineffective assistance by trial counsel,
the court explicitly finds that the petitioner has waived any claims against
. . . Lorenzen by not raising them in the present matter.’’ The petitioner
does not challenge this aspect of the habeas court’s decision.
2
General Statutes § 53a-13 provides in relevant part: ‘‘(a) In any prosecu-
tion for an offense, it shall be an affirmative defense that the defendant, at
the time he 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 conduct within the requirements of the law.
‘‘(b) It shall not be a defense under this section if such mental disease
or defect was proximately caused by the voluntary ingestion, inhalation or
injection of intoxicating liquor or any drug or substance, or any combination
thereof, unless such drug was prescribed for the defendant by a prescribing
practitioner, as defined in subdivision (22) of section 20-571, and was used
in accordance with the directions of such prescription. . . .’’
3
General Statutes § 53a-54a provides in relevant part: ‘‘(a) A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person or of a third person . . . .’’
4
Prior to oral argument before this court, we requested the parties to be
prepared to address the issue of mootness regarding this claim. Specifically,
we inquired as to whether the petitioner’s attack on his conviction of felony
murder would be moot if he is unsuccessful in this appeal in obtaining relief
regarding his conviction of murder because, even if he is successful in his
attack on his conviction of felony murder, he still would be obligated to
serve a fifty-five year sentence on the basis of his murder conviction alone.
We conclude that this claim is not moot.
A claim is moot if there is no practical relief that this court can afford
the complainant. State v. Preston, 286 Conn. 367, 374, 944 A.2d 276 (2008).
A claim is not moot if this court can afford practical relief from the collateral
consequences of a conviction. Barlow v. Lopes, 201 Conn. 103, 112–13, 513
A.2d 132 (1986) (‘‘[t]he collateral consequences of a conviction are legion:
subsequent convictions might, as a result, carry heavier penalties and a wide
range of civil rights might be affected’’).
In deciding whether this claim is moot, we first must review the distinction
between merged convictions and vacated convictions. Subsequent to the
petitioner’s sentencing in the underlying criminal trial, our Supreme Court
held that ‘‘when a defendant has been convicted of greater and lesser
included offenses, the trial court must vacate the conviction for the lesser
offense rather than merging the convictions . . . .’’ State v. Polanco, 308
Conn. 242, 245, 61 A.3d 1084 (2013). Prior to Polanco, our Supreme Court
had adopted the merger of convictions approach, in which the sentences for
the greater and lesser included offenses were merged but both convictions
remained on a defendant’s criminal record. Id., 252. In Polanco, our Supreme
Court held that the lesser included offense should be vacated, not merged,
and, thus, the lesser included offense would not remain on a defendant’s
criminal record. Id. Accordingly, if the petitioner had been sentenced after
our Supreme Court’s decision in Polanco, his felony murder conviction
would have been vacated, not merged.
Here, the petitioner’s sentences for his murder and felony murder convic-
tions were merged. Thus, the petitioner’s criminal record reflects both con-
victions, and there is practical relief that this court can afford the petitioner
should he prevail on his second claim—namely, he would be entitled to
have the felony murder conviction expunged from his criminal record.
Accordingly, this claim is not moot. See State v. Carter, 320 Conn. 564, 565
n.2, 132 A.3d 729 (2016) (‘‘the defendant’s appeal of the lesser sentence is
not rendered moot simply because we cannot afford him relief in terms of
the length of his sentence’’).
5
General Statutes (Supp. 2016) § 53a-54c defines felony murder in relevant
part: ‘‘A person is guilty of [felony] murder when, acting either alone or
with one or more persons, such person commits . . . burglary . . . and,
in the course of and in furtherance of such crime . . . such person . . .
causes the death of a person other than one of the participants . . . .’’
We note that § 53a-54c was amended in 2015; see Public Acts 2015, No.
15-211, § 3; however, the amendment is not relevant to this appeal. For
convenience, we refer herein to the revision codified in the 2016 supplement
to the General Statutes.
6
General Statutes § 53a-101 (a) defines burglary in the first degree in
relevant part: ‘‘[A] person is guilty of burglary in the first degree when (1)
such person enters or remains unlawfully in a building with intent to commit
a crime therein and is armed with . . . a . . . dangerous instrument
. . . .’’
7
General Statutes § 53a-61 defines assault in the third degree in relevant
part: ‘‘(a) A person is guilty of assault in the third degree when: (1) With
intent to cause physical injury to another person, he causes such injury to
such person or to a third person; or (2) he recklessly causes serious physical
injury to another person; or (3) with criminal negligence, he causes physical
injury to another person by means of a deadly weapon, a dangerous instru-
ment or an electronic defense weapon. . . .’’
8
General Statutes § 53a-125b (a) defines larceny in the sixth degree: ‘‘A
person is guilty of larceny in the sixth degree when he commits larceny as
defined in section 53a-119 and the value of the property or service is five
hundred dollars or less.’’
General Statutes § 53a-119 provides in relevant part: ‘‘A person commits
larceny when, with intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully takes, obtains or
withholds such property from an owner. . . .’’
9
The petitioner does not request that we review this unpreserved argument
pursuant to State v. Golding, supra, 213 Conn. 239–40, as modified by In
re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Even if he did,
however, this argument is not reviewable pursuant to Golding. See Moye
v. Commissioner of Correction, 316 Conn. 779, 787, 114 A.3d 925 (2015)
(Golding review is not available for unpreserved ineffective assistance of
counsel claims and is only available in habeas appeal if ‘‘[a] petitioner
challenges the actions of the habeas court itself’’ [internal quotation marks
omitted]). Accordingly, we decline to review it.