Ervin v. Commissioner of Correction ( 2020 )

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MICHAEL ERVIN v. COMMISSIONER
OF CORRECTION
(AC 41763)
Elgo, Devlin and Sheldon, Js.
Syllabus
The petitioner, who had been convicted of the crime of murder in connection
with the death of his wife, sought a writ of habeas corpus. He claimed,
inter alia, that his trial counsel, M, rendered ineffective assistance to him
by failing to present the testimony of an independent defense forensic
pathologist to rebut the testimony of the state’s chief medical examiner,
C, as to the cause of the victim’s death, and by presenting an inadequate
argument in support of his posttrial motion for a judgment of acquittal.
C determined that the cause of the victim’s death was traumatic asphyxia
due to neck compression, and C testified at trial that the cause of death
was consistent with a certain type of wrestling hold previously used by
the petitioner. M hired as a defense consultant a forensic pathologist,
T, who previously had concluded that the victim’s injuries were consis-
tent with a choke hold neck compression, although T could not rule
out choking on food as a cause of death. In subsequent discussions, C
and T each explained to M that the presence of food in the victim’s mouth
was probably the result of agonal regurgitation, i.e., vomit expelled as
the body ceases to function. T also informed M that he believed that
his testimony would be unhelpful for the defense and suggested that
the petitioner consider a plea disposition. The habeas court rendered
judgment denying the petition, from which the petitioner, on the granting
of certification, appealed to this court. Held:
1. The petitioner’s claim that M rendered ineffective assistance of counsel
to him by failing to present expert testimony from an independent
forensic pathologist to refute C’s testimony as to the cause of the victim’s
death was unavailing; M sought out the opinion of a highly trained and
experienced forensic pathologist, T, on which he was entitled to rely,
and, although M made the strategic decision not to call T as a defense
witness after T told M that he would not be helpful as a trial witness
because he agreed with the opinion of C, M did request and receive
valuable information from T, which he used in his cross-examination
of C, and M was not required to search for a different, more favorable
expert than T to contradict C’s testimony at trial.
2. The petitioner could not prevail on his claim that M rendered ineffective
assistance of counsel at his criminal trial by presenting an inadequate
argument in support of his motion for a judgment of acquittal and,
specifically, that M failed to argue that, on the basis of the evidence
presented at trial, the state could not prove the essential element of
intent to kill because it could not disprove an alternative hypothesis,
that he had caused the victim’s death inadvertently by applying compres-
sion to her neck without intending to cause her death: M’s decision not
to base the petitioner’s defense on the theory of inadvertent death
by neck compression without intent to kill was neither professionally
inappropriate nor constitutionally deficient under the circumstances, as
there was no physical evidence at the crime scene of any physical
struggle between the petitioner and the victim, and M raised that theory
with the petitioner for the purpose of having him consider relying on
it but the petitioner adamantly refused to do so, for he was aware
that by raising that defense he would have to admit and argue certain
important and highly incriminating facts that he vehemently denied,
and M, faced with the petitioner’s denial, understandably avoided any
mention of that theory when he argued the petitioner’s posttrial motion
for a judgment of acquittal, which also avoided the possibility that the
jury might be instructed on, and thus might find the petitioner guilty
of, a lesser included offense instead of acquitting him entirely if it had
reasonable doubt as to his alleged intent to kill; moreover, the petitioner
could not prevail on his claim that he was prejudiced because a properly
argued motion for a judgment of acquittal would probably have led the
trial court to grant the motion on the theory that there was insufficient
evidence before the jury to prove that he had acted with the intent to
kill the victim, as there was more than ample evidence in the record to
support the inference that the petitioner had intentionally killed the
victim, and such evidence supported the complementary inferences that
the petitioner had the motive, the means and the opportunity to kill
the victim.
Argued October 8, 2019—officially released February 11, 2020
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
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
James J. Ruane, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and Paul J. Narducci, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
SHELDON, J. In this certified appeal from the habeas
court’s denial of his amended petition for a writ of
habeas corpus, the petitioner, Michael Ervin, claims
that the court erred in rejecting his claim that his trial
counsel rendered ineffective assistance to him in his
criminal trial for the murder of his wife (victim)1 (1)
by failing to call a defense pathologist to rebut the
testimony of the state’s chief medical examiner, Harold
Wayne Carver, as to the cause of the victim’s death
and/or (2) by presenting an inadequate argument in
support of his motion for a judgment of acquittal. We
affirm the judgment of the habeas court.
In reviewing the petitioner’s claims on direct appeal
from his conviction, this court set forth the following
facts, which were adopted by the habeas court. ‘‘On
March 14, 2002, at approximately 10 p.m., Norwich
police and emergency personnel, who had been dis-
patched to [the petitioner’s home], discovered the unre-
sponsive body of the victim . . . on the kitchen floor.
Measures to revive the victim were unsuccessful. The
victim had no visible signs of injury, no cuts or abrasions
and no pulse. The [petitioner] was kneeling on the floor
next to the victim, and he had no external injuries on
him. Police found no signs of a forced entry or struggle.
A paramedic had difficulty opening the victim’s airway
because there was a substantial amount of vomit as
well as particles of food in her mouth. Eventually, the
victim was transported to a hospital where she was
pronounced dead at approximately 11 p.m.
‘‘The medical examiner determined the cause of
death to be traumatic asphyxia due to neck compres-
sion. During the trial, the medical examiner viewed
a demonstration videotape showing a certain type of
wrestling hold once used by the [petitioner] and testi-
fied that the cause of death was consistent with such
a hold. The [petitioner] stated to the police that the
victim had been fine when he left her earlier in the
evening. He returned to the home with his occasional
fishing companion, Michael Hancin, and found the vic-
tim on the floor where he attempted to revive her.’’
State v. Ervin, 105 Conn. App. 34, 36–37, 936 A.2d 290
(2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).
The jury found the petitioner guilty of murder in viola-
tion of General Statutes § 53a-54a (a), for which the
trial court sentenced him to a term of sixty years incar-
ceration. Thereafter, this court affirmed the petitioner’s
conviction on direct appeal. Id., 36.
On July 24, 2014, the petitioner filed a petition for a
writ of habeas corpus. By way of an amended petition
filed on November 28, 2017, the petitioner claimed, inter
alia, that his trial counsel, Bruce McIntyre, rendered
ineffective assistance to him in two ways: first, by failing
to present the testimony of an independent defense
pathologist to rebut the testimony of Carver as to the
cause of the victim’s death; and second, by presenting
an inadequate argument in support of his posttrial
motion for a judgment of acquittal.
On April 24, 2018, after a multiday trial, the habeas
court issued a memorandum of decision denying the
petitioner’s petition. As to each claim, the court found
that the petitioner had failed to prove either that his trial
counsel’s performance was constitutionally deficient or
that he had been prejudiced by such allegedly deficient
performance. The habeas court made the following rele-
vant factual findings in its memorandum of decision.
‘‘Attorney McIntyre was the third attorney appointed
to represent the petitioner, having been preceded by
public defenders Elizabeth Inkster and Kevin Barrs.
His predecessors had consulted and retained a forensic
pathologist, Dr. Mark Taff. Dr. Taff was a highly trained
and experienced forensic pathologist who had been a
medical examiner for Wayne County, Michigan, which
includes the city of Detroit. Both Attorneys Inkster and
Barrs had employed Dr. Taff as a defense consultant
in the past, as had Attorney McIntyre.
‘‘When consulted by Attorney Inkster in 2003, Dr.
Taff reviewed the materials pertinent to the petitioner’s
case. Dr. Taff concurred with Dr. Carver that the vic-
tim’s injuries were consistent with choke hold neck
compression, although Dr. Taff could not rule out chok-
ing on food as a cause of death. Attorney McIntyre
reviewed Dr. Taff’s report and rehired Dr. Taff as a
defense consultant on behalf of the petitioner.
‘‘Attorney McIntyre also discussed the petitioner’s
case with Dr. Carver on two occasions, including one
discussion that took several hours. Attorney McIntyre
also spoke with Dr. Taff a few days before the petition-
er’s trial began. Dr. Taff explained that, while he found
the evidence as to cause of death equivocal, it was
consistent with application of a sleeper hold. Dr. Taff
also informed Attorney McIntyre that he believed [that]
his testimony would be unhelpful for the defense and
suggested that the petitioner consider a plea dispo-
sition.
‘‘Attorney McIntyre possessed an advantage over
most defense lawyers because he had been a military
policeman, a Hartford police officer, and a Connecticut
state trooper for twenty years. With all three law
enforcement agencies, he received specialized training
in restraint holds and understood that one had to release
a subject to such a hold within seven seconds to avoid
serious harm.
‘‘Soon after receiving assignment of the petitioner’s
case, Attorney McIntyre reviewed all the material con-
nected with the case, including Dr. Carver’s autopsy
report. Attorney McIntyre educated himself in the area
of neck compression asphyxia by [reading] salient por-
tions of [a forensic pathology text] and conducting
internet research. As a result, Attorney McIntyre rehired
Dr. Taff.
‘‘In his discussions with Dr. Carver, Attorney McIn-
tyre inquired about the significance of the absence of
forced entry and the warmth of the victim’s body. Dr.
Carver explained that the presence of food in the vic-
tim’s mouth was probably the result of agonal regurgita-
tion, i.e., vomit expelled as the body ceases to function.
‘‘When he consulted Dr. Taff, Attorney McIntyre revis-
ited these topics. They explored the viability of possible
alternative explanations for Dr. Carver’s observations.
Dr. Taff agreed with Dr. Carver’s assessment of agonal
regurgitation and with the presence and significance of
petechial hemorrhages on the victim’s body.
‘‘Attorney McIntyre also conferred with Dr. Taff on
occasion during the petitioner’s criminal trial. Attorney
McIntyre was impressed by Dr. Taff’s abilities and con-
sidered his opinions and advice to be very competent,
direct, and useful. Attorney McIntyre has retained Dr.
Taff on other cases since the petitioner’s trial. Dr. Taff
suggested to Attorney McIntyre several areas for cross-
examination of Dr. Carver, which information Attorney
McIntyre explored in the examination, including the
fact that female tissue will often display injury when
subjected to less force than needed to produce that
effect in males, that the injuries that Dr. Carver detected
were very subtle, that these injuries are not diagnostic
for neck compression, that Dr. Carver never examined
the victim’s soft tissue microscopically, and that vigor-
ous CPR can, itself, cause petechial hemorrhaging.’’
On the basis of the foregoing factual findings and
credibility determinations, the habeas court, in
addressing the petitioner’s ineffective assistance claim
regarding the failure to call an expert pathologist, stated
that trial counsel ‘‘was entitled to rely on the opinion
of Dr. Taff because that reliance was reasonable’’ and
cited to Dr. Taff’s credentials. The court further stated
that even if counsel had presented ‘‘expert testimony
. . . the jury would still have had the opportunity to
assess whether the other evidence in the case . . . sup-
ported the opinion of the chief medical examiner . . . .
[I]mportantly, the petitioner grossly downplays the dev-
astating evidence [introduced at trial].’’ The court sum-
marized such ‘‘devastating evidence’’ as follows: ‘‘[E]vi-
dence of the petitioner’s intense desire to remove the
victim from his life, his wish to make [Dee Anne]
Champlin the ‘next mother’ of his children, his ability
to execute the sleeper hold, and his peculiarly deceitful
and evasive behavior on the night of the victim’s death
and the following day. The fact that . . . Champlin
began staying at the petitioner’s home within a few
weeks of the victim’s death belies the petitioner’s state-
ments to [the] police that he never intended to live
with Champlin.’’2
In addressing the petitioner’s claim that counsel pre-
sented inadequate argument on the motion for a judg-
ment of acquittal, the habeas court concluded that the
state had presented sufficient evidence, apart from Dr.
Carver’s expert opinion as to the cause of the victim’s
death, to establish that the petitioner had caused her
death while acting with the intent to kill. It summarized
such evidence, more particularly, as follows:
‘‘As to the identity of the perpetrator, the crime scene
contained no evidence of forced entry or signs of a
struggle. The petitioner had locked the door to the home
when he left for the marina and needed to unlock the
door when he returned with Hancin. . . .
‘‘[As to the petitioner’s alleged intent to kill, the] jury
could have determined that the petitioner engaged in
several peculiar actions the evening of [the victim’s]
demise and the following day that comprised indicia of
guilt. He was supposed to join [Champlin] at her home
around 6:30 p.m., and reiterated his intent to do so,
while simultaneously arranging to meet with Hancin at
5:30 p.m., to fish at the marina. When he finally arrived
at the marina, at 9:30 p.m., he had no fishing gear. The
petitioner then proceeded to badger Hancin to go to
the petitioner’s house to practice shooting darts, despite
Hancin’s vocal and obvious disinclination to do so
because he needed to return to his home by 11 p.m. The
petitioner’s agitated insistence led Hancin to accede to
the petitioner’s demands.
‘‘The petitioner then drives home, followed by Han-
cin, in an inordinately slow fashion. They enter the
petitioner’s house, and Hancin sits in the living room
preparing his three darts for throwing, which prepara-
tion takes approximately one minute per dart. Through-
out this time, the petitioner was in the kitchen, where
[the] unconscious and nonresponsive [victim] lay
sprawled on the floor. Hancin thought it strange that
the petitioner took minutes, rather than seconds, to
summon his assistance.
‘‘Upon seeing the victim on the floor, Hancin urged
the petitioner to call 911 several times, but each time
the petitioner failed to do so. Hancin ended up using
the petitioner’s house phone to call 911. When Hancin
asked the petitioner for the address, again the petitioner
appeared to stall. When Hancin attempted to revive the
victim, the petitioner pushed him away and took over
and immediately stuck his fingers into the victim’s
mouth and extracted a large quantity of food. The jury
could reasonably infer that the petitioner had engaged
in procuring Hancin’s presence at the house to stage
the scene for when the petitioner first seemed to dis-
cover [the victim’s] body.
‘‘Also, the petitioner lied to the police about several
matters when the police interviewed him the next day.
He denied ever having plans to meet with . . . Champ-
lin the evening before. He stated [that] his marriage
was ‘very good’ and that he and [the victim] ‘got along
great.’ He claimed that he asked Hancin to call 911
and that he was the first person to initiate CPR. He
acknowledged having had an affair but one that only
lasted a couple of months and had ended about a year
earlier. He claimed that he never intended to live with
Champlin and had merely agreed to help her move into
her new apartment.
‘‘The jury also heard evidence from multiple wit-
nesses that his relationship with Champlin had never
ceased; that he was supposed to meet with her on the
evening of [the victim’s] death; that Champlin had been
pressuring him to fulfill his repeated promises to leave
[the victim] so that the petitioner and Champlin could
live together; that the petitioner had recently opened a
joint checking account and savings account with
Champlin; that he and Champlin applied for rental of
an apartment together; that he and Champlin were
scheduled to move to that apartment two days after
[the victim’s] death; and that the apartment was chosen
because it was large enough to accommodate the peti-
tioner’s two children. Most significantly, the petitioner
had made statements to Hancin that he intended to
live with Champlin, who would be his children’s next
mother, and that he had to get rid of [the victim].’’
On the basis of that evidence, the habeas court con-
cluded that ‘‘the jury had before it abundant evidence,
in conjunction with Dr. Carver’s testimony, to find,
beyond a reasonable doubt, that the victim’s death
resulted from the petitioner’s intentional acts to pro-
duce that outcome.’’ (Emphasis in original.) It therefore
denied the petitioner’s amended petition for a writ of
habeas corpus. The petitioner timely filed a petition for
certification to appeal, which was granted. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
On appeal, the petitioner claims that the habeas court
erred in determining that he had failed to prove that
his trial counsel’s performance was constitutionally
deficient either in failing to present expert testimony
from an independent pathologist to rebut the medical
examiner’s testimony as to the cause of the victim’s
death or in presenting an inadequate argument in sup-
port of his motion for a judgment of acquittal. We
disagree.
We begin our review of the habeas court’s rulings by
setting forth the standard of review applicable to and
the substantive law governing the petitioner’s underly-
ing claims. ‘‘The habeas court is afforded broad discre-
tion in making its factual findings, and those findings
will not be disturbed unless they are clearly erroneous.
. . . Historical facts constitute a recital of external
events and the credibility of their narrators. . . .
Accordingly, [t]he habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review.
. . .
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S. 668,
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . As enunciated in
Strickland . . . this court has stated: It is axiomatic
that the right to counsel is the right to the effective
assistance of counsel. . . . A claim of ineffective assis-
tance of counsel consists of two components: a perfor-
mance prong and a prejudice prong. To satisfy the per-
formance prong . . . 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 crimi-
nal law. . . . 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.
. . . Gaines v. Commissioner of Correction, 306 Conn.
664, 677–78, 51 A.3d 948 (2012). A court can find against
a petitioner, with respect to a claim of ineffective assis-
tance of counsel, on either the performance prong or
the prejudice prong, whichever is easier. Washington
v. Commissioner of Correction, 287 Conn. 792, 832–33,
950 A.2d 1220 (2008).’’ (Internal quotation marks omit-
ted.) Thomas v. Commissioner of Correction, 141
Conn. App. 465, 470–71, 62 A.3d 534, cert. denied, 308
Conn. 939, 66 A.3d 881 (2013).
I
The petitioner first claims that his trial counsel ren-
dered ineffective assistance to him by failing to present
expert testimony from an independent pathologist to
refute Dr. Carver’s testimony as to the cause of the
victim’s death. Specifically, the petitioner contends that
counsel should have presented an expert pathologist
to testify that the victim’s death was caused by choking
on food, not by traumatic asphyxia due to neck com-
pression. The respondent, the Commissioner of Correc-
tion, disagrees, contending that counsel reasonably
relied on his consultation with Dr. Taff to cross-examine
Dr. Carver, and that he was not required to search
for a different, more favorable expert than Dr. Taff to
contradict Dr. Carver’s testimony at trial. We agree with
the respondent.
‘‘A trial attorney is entitled to rely reasonably on the
opinion of an expert witness; see Doehrer v. Commis-
sioner of Correction, 68 Conn. App. 774, 783, 795 A.2d
548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002);
and is not required to continue searching for a different
expert [or for multiple experts once he has done so].’’
Stephen S. v. Commissioner of Correction, 134 Conn.
App. 801, 816, 40 A.3d 796, cert. denied, 304 Conn.
932, 43 A.3d 660 (2012); see id., 816–17 (‘‘[w]e cannot
conclude that [counsel’s] performance was deficient
when he consulted with an expert witness regarding
the victim’s physical examination, yet reasonably con-
cluded not to use the expert witness at trial after
determining that such testimony would not benefit the
petitioner’s defense’’); see also Santiago v. Commis-
sioner of Correction, 90 Conn. App. 420, 426, 876 A.2d
1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005),
cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007,
126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).
Furthermore, ‘‘[t]here is no per se rule that requires
a trial attorney to seek out an expert witness. . . .
Where trial counsel has consulted with such experts,
however, but made the tactical decision not to produce
them at trial, such decisions properly may be consid-
ered strategic choices.’’ (Citation omitted; internal quo-
tation marks omitted.) Santos v. Commissioner of Cor-
rection, 151 Conn. App. 776, 785, 96 A.3d 616 (2014).
In the present matter, trial counsel sought out Dr.
Taff’s opinion, on which he was entitled to rely. Dr.
Taff was a ‘‘highly trained and experienced forensic
pathologist . . . .’’ After discussing the matter with
counsel, Dr. Taff told counsel that he would not be
helpful as a trial witness because he agreed with the
opinion of Dr. Carver. On that basis, counsel made
the strategic decision not to call Dr. Taff as a defense
witness. Even so, he did request and receive valuable
information from Dr. Taff, which he used in his cross-
examination of Dr. Carver. The fact that it took the jury
five days to deliberate before returning a verdict speaks
to the effectiveness of counsel’s cross-examination.
On the basis of this evidence as to counsel’s efforts
to contest the cause of the victim’s death at trial, the
petitioner failed to demonstrate deficient performance
on the part of counsel based on his decision not to
recruit or present the testimony of another expert
pathologist.
II
The petitioner next claims that his counsel rendered
ineffective assistance at his criminal trial by presenting
an inadequate argument in support of his motion for a
judgment of acquittal. In his appellate brief, he argues
that trial counsel’s performance in arguing the motion
was constitutionally deficient because counsel failed
to argue that, on the basis of the evidence presented
at trial, the state could not prove the essential element
of intent to kill because it could not disprove an alterna-
tive hypothesis, also assertedly raised by the evidence,
that he had caused the victim’s death inadvertently by
applying compression to her neck without intending to
cause her death.3 The petitioner claims that if counsel
had argued his motion on that basis, the trial court
‘‘likely’’ would have granted the motion, and thereby
ordered his acquittal on the charge of murder.4 The
respondent contends that the petitioner’s argument is
completely devoid of merit, both because counsel’s per-
formance in basing his argument solely on the only
defense theory approved by the petitioner and pre-
sented at trial—that the victim had died from acciden-
tally choking on food—was professionally appropriate,
and because such performance could not have preju-
diced the petitioner due to the abundance of other evi-
dence before the jury supporting the inference that the
petitioner had the intent to kill the victim. We agree
with the respondent that the petitioner failed to prove
either the performance prong or the prejudice prong of
this aspect of his ineffective assistance of counsel claim.
Practice Book § 42-40 provides in relevant part: ‘‘After
the close of the prosecution’s case-in-chief or at the
close of all the evidence, upon motion of the defendant
or upon its own motion, the judicial authority shall
order the entry of a judgment of acquittal as to any
principal offense charged and as to any lesser included
offense for which the evidence would not reasonably
permit a finding of guilty. Such judgment of acquittal
shall not apply to any lesser included offense for which
the evidence would reasonably permit a finding of
guilty.’’ On a motion for a judgment of acquittal, ‘‘[t]he
issue to be determined is whether the jury could have
reasonably concluded, from the facts established and
the reasonable inferences which could be drawn from
those facts, that the cumulative effect was to establish
guilt beyond a reasonable doubt . . . .’’ (Internal quota-
tion marks omitted.) State v. Balbuena, 168 Conn. App.
194, 199, 144 A.3d 540, cert. denied, 323 Conn. 936, 151
A.3d 384 (2016).
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a [two part] test. First, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn there-
from the [finder of fact] reasonably could have con-
cluded that the cumulative force of the evidence estab-
lished guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) State v. Campbell, 328 Conn. 444,
503–504, 180 A.3d 882 (2018).
It is important to note that, ‘‘[i]n evaluating evidence,
the trier of fact is not required to accept as dispositive
those inferences that are consistent with the defen-
dant’s innocence. . . . The trier may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) State v. Balbuena,
supra, 168 Conn. App. 199.
‘‘[T]he state of mind of one accused of a crime is
often the most significant and, at the same time, the
most elusive element of the crime charged. . . .
Because it is practically impossible to know what some-
one is thinking or intending at any given moment, absent
an outright declaration of intent, a person’s state of
mind is usually [proven] by circumstantial evidence
. . . .’’ (Internal quotation marks omitted.) State v. Bon-
illa, 317 Conn. 758, 766, 120 A.3d 481 (2015). ‘‘Intent to
cause death may be inferred from the type of weapon
used, the manner in which it was used, the type of
wound inflicted and the events leading to and immedi-
ately following the death.’’ (Internal quotation marks
omitted.) State v. Campbell, supra, 328 Conn. 504.
Here, the petitioner argues that trial counsel should
have argued inadvertent death by neck compression
and emphasized the lack of evidence to establish the
element of intent. He asserts that he was prejudiced by
counsel’s failure to so argue the motion because, had
the motion been so argued, it is likely that the trial
court would have granted it, and thereby acquitted him
of murder. We disagree.
To prove the performance prong of this second aspect
of his ineffective assistance of counsel claim, the peti-
tioner claims, impliedly, that whenever the evidence
presented at trial raises doubt as to an essential element
of a charged offense, it is unprofessional for counsel
not to take advantage of that insufficiency by pointing
it out to the trial court and arguing it as a basis for
ordering a judgment of acquittal. This case, however,
provides an excellent example of why that otherwise
logical proposition is not invariably true. Here, defense
counsel was well aware of the inadvertent death by
neck compression theory of the defense and, in fact,
had raised it with the petitioner for the purpose of
having him consider relying on it. The petitioner, how-
ever, adamantly refused to do so, for he was aware that
by raising that defense he would have to admit and
argue two important and highly incriminating facts that
he vehemently denied: first, that he was present in the
family home when the victim died; and second, that
her death had resulted from his application of a sleeper
hold to her neck, albeit without the intent to cause her
death. Counsel, faced with his client’s denial, under-
standably avoided any mention of that theory of the
case when he argued the petitioner’s posttrial motion
for a judgment of acquittal. In so doing, moreover, he
also avoided the possibility that the jury might be
instructed on and thus might find the petitioner guilty
of a lesser included offense, such as manslaughter or
negligent homicide, instead of acquitting him entirely
if it had reasonable doubt as to his alleged intent to kill.
For these reasons, and because there was no physical
evidence at the crime scene of any physical struggle
between the petitioner and the victim, we conclude that
counsel’s decision not to base the petitioner’s defense
or his motion for a judgment of acquittal on the theory
of inadvertent death by neck compression without
intent to kill was neither professionally inappropriate
nor constitutionally deficient.
On this second aspect of the petitioner’s ineffective
assistance of counsel claim, as on the first, we are not
required to address the issue of prejudice in light of
our determination that the petitioner failed to prove
the performance prong of the claim. Strickland v. Wash-
ington, supra, 466 U.S. 687. We will do so, however, to
clarify two matters. First, since the gravamen of the
petitioner’s claim of prejudice is that a properly argued
motion for a judgment of acquittal would probably have
led the trial court to grant the motion on the theory
that there was insufficient evidence before the jury to
prove that he had acted with the intent to kill the victim,
we agree with the habeas court that there was more
than ample evidence in the record to support the infer-
ence that the petitioner had intentionally killed the vic-
tim. Such evidence, more particularly, supports comple-
mentary inferences that the petitioner had the motive,
the means, and the opportunity to kill the victim. As to
motive, the jury was presented with witness testimony
that the petitioner had wanted to ‘‘get rid of his wife,’’
and that his girlfriend, Champlin, ‘‘would be his chil-
dren’s next mother . . . .’’ Multiple witnesses testified
that the petitioner had stated that he intended to leave
the victim, and, shortly after the victim’s death, the
petitioner and Champlin moved in together. Moreover,
prior to the victim’s death, the petitioner and Champlin
had confirmed their intent to live together by signing
a joint lease and opening a joint bank account. This
alone was overwhelming circumstantial evidence of the
petitioner’s motive, and thus of his intent, to murder
the victim.
As to means, the evidence showed that the petitioner
could easily have applied a sleeper hold to the victim
because he knew how to apply such a hold and had
been seen doing so to another person at least once in
the past. As to opportunity, the jury had heard testimony
that there were several hours of time that were unac-
counted for between when the petitioner was supposed
to have joined his friend, Hancin, at the marina to go
fishing and the time he actually arrived there, unpre-
pared to go fishing and unaccountably insistent on
returning to his home for the stated purpose of playing
darts. Such evidence, coupled with the petitioner’s
unusual behavior in Hancin’s presence after persuading
Hancin to return with him to his home—including
delaying both the giving of first aid and the summoning
of rescue personnel despite the victim’s obviously dis-
tressed condition, which showed a degree of unconcern
about her condition and ultimate fate—well supported
the inference that he wanted and expected the victim
to die. In light of this evidence, the petitioner failed to
prove that there was a reasonable likelihood that his
motion for a judgment of acquittal would have been
granted had his trial counsel argued it differently.
In light of the facts presented at trial, summarized
as aforesaid, trial counsel performed well within the
bounds of competent representation and did not need
to argue inadvertent death as a theory in support of the
petitioner’s motion for a judgment of acquittal.
For the foregoing reasons, we conclude that the
habeas court properly denied the petitioner’s amended
petition for a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of
victims of family violence, we decline to use the victim’s name.
2
A detailed description of the evidence is set forth in part II of this opinion.
3
In his principal brief, the petitioner argues that trial counsel should have
argued that the evidence presented at trial was insufficient to prove him
guilty of murder because it did not disprove beyond a reasonable doubt
that the victim had suffered an ‘‘inadvertent death’’ by neck compression.
The brief explains that inadvertent death by neck compression means ‘‘neck
compression without intent to kill.’’ (Internal quotation marks omitted.) To
put this language into context, the brief argues more specifically that trial
counsel should have argued that the petitioner choked the victim and caused
her death but did not do so with the intent to cause her death.
During oral argument, however, the petitioner’s appellate counsel aban-
doned the foregoing argument and contended, instead, that, on the facts of
this case, as presented by the state at trial, defense counsel had two ways
of defending this case: (1) offering an alibi, which he admittedly did not
have, or (2) arguing that the victim’s death had not been caused by criminal
means but had, instead, been accidental. When asked what he meant by the
term ‘‘accidental,’’ appellate counsel stated that ‘‘accidental’’ means
‘‘choking.’’
We elect to address the merits of the petitioner’s claim based on the
theory argued in his principal brief: ‘‘neck compression without intent to
kill.’’ (Internal quotation marks omitted.)
4
The petitioner also argues that trial counsel was ineffective in failing to
request a jury instruction on the lesser included offense of manslaughter.
However, this issue was not raised in the habeas court, and, therefore, it
cannot be raised for the first time on appeal. See Lewis v. Commissioner
of Correction, 165 Conn. App. 441, 444 n.2, 139 A.3d 759, cert. denied, 322
Conn. 901, 138 A.3d 931 (2016).