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RAMEY v. COMMISSIONER OF CORRECTION—DISSENT

PELLEGRINO, J., dissenting. I respectfully dissent. I

do not agree that the petitioner’s trial attorney’s ‘‘strategy’’ to avoid proving and arguing that the petitioner,

Ryan Ramey, was intoxicated would in any way have

detracted from his primary thrust that the state’s own

witness could not opine how the fire started and, as a

result, the petitioner had a good chance at acquittal. It

is logical and certainly consistent with the evidence to

argue that the state could not prove its case that the

petitioner started the fire and that, even if the jury found

beyond a reasonable doubt that he did start the fire,

he certainly could not be guilty of first degree arson

because he was intoxicated and did not have the specific intent to commit the crime. These are not inconsistent arguments, and the fact that they were not made

deprived the jury of the opportunity to consider a lesser

included crime and, ultimately, deprived the petitioner

of the chance that he could have faced a lesser penalty.

The petitioner’s trial attorney, Attorney H. Jeffrey Beck,

should not be allowed to hide behind the ‘‘trial strategy’’

shield to override what I believe to be ineffective representation. Accordingly, I conclude that the habeas court

abused its discretion in denying certification to appeal,

and I would reverse the judgment denying the petition

for a writ of habeas corpus.

I

Appellate review of counsel’s performance ‘‘requires

that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time [of

trial].’’ (Internal quotation marks omitted.) Bryant v.

Commissioner of Correction, 290 Conn. 502, 512, 964

A.2d 1186, cert. denied sub nom. Murphy v. Bryant,

558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).

Due to the amount of circumstantial evidence adduced

at trial, the jury only could have drawn one reasonable

conclusion—the petitioner started the fire in question.

The record reflects that the petitioner was the only

person in the building at the time the fire started. The

fire marshal, Charles R. Doback, Jr., testified on the

basis of his report that it was ‘‘very obvious’’ that the

fire started in the room in the petitioner’s apartment

where the responding officers observed the petitioner.

Although Doback did testify that he could not determine

exactly how the fire started, he was able to rule out

several potential accidental causes. On cross-examination, Beck never raised the possibility that there may

have been other potential accidental causes of the fire

that Doback had not ruled out. Doback’s testimony

as a whole left the impression that the fire was not

accidental. Furthermore, even though Doback testified
that there was no evidence that accelerants were used

to start the fire, he made it clear that the fire could

have been set intentionally without using an accelerant.

In sum, the state’s evidence was that the petitioner was

the only occupant of the building at the time that the

fire was set, and the state’s fire investigator ruled out

any accidental causes that he considered.1

As a matter of common sense, the only reasonable

conclusion based on these facts was that the petitioner

intentionally started the fire. See State v. Rodgers, 198

Conn. 53, 59, 502 A.2d 360 (1985) (‘‘jury must rely on

its common sense, experience and knowledge of human

nature’’). The only possible alternative explanation for

the fire was that, by pure coincidence, a fire started

in the petitioner’s apartment on the same day that he

threatened suicide, barricaded himself inside the building, and was surrounded by police. This theory defies

common sense. Absent evidence to the contrary, the

state’s evidence led to the conclusion that the petitioner

intended to set the fire, which in turn invites a strong

inference that the petitioner intended to damage the

building. See State v. Coleman, 304 Conn. 161, 167–68,

37 A.3d 713 (2012) (specific intent to commit murder

inferred from defendant’s conduct and weapon used);

State v. Ayala, 133 Conn. App. 514, 519–20, 36 A.3d

274 (specific intent to prevent individual’s liberation

inferred from threatening victim’s life and ordering her

to sit on couch), cert. denied, 304 Conn. 913, 40 A.3d 318

(2012). As this court stated previously in the petitioner’s

direct appeal, the state provided ‘‘ample circumstantial

evidence from which the jury reasonably could have

inferred that the [petitioner] possessed the requisite

intent to damage the building at the time that he started

the fire.’’ State v. Ramey, 127 Conn. App. 560, 568, 14

A.3d 474, cert. denied, 301 Conn. 910, 19 A.3d 177 (2011).

The only reasonable strategy in light of the state’s

evidence was not to claim that the evidence was insufficient, but to argue that, although the fire intentionally

was set, the petitioner recklessly caused damage to the

building as opposed to specifically intending to do so.

The petitioner’s intent at the time the fire started was

central to the outcome of the case. Beck’s performance

was deficient because he failed to respond to the state’s

circumstantial case with the credible evidence available

to him that demonstrated the petitioner did not specifically intend to damage the building.

The most persuasive evidence that the petitioner did

not specifically intend to damage the building was that

he was intoxicated at the time the fire started. See

General Statutes § 53a-7 (evidence of intoxication can

negate evidence of specific intent). At the habeas trial,

the petitioner testified that he began drinking at 5 p.m.

on the evening before the fire, and continued to drink

with friends until dawn.2 The hospital report indicated

that the petitioner’s blood alcohol level was 0.274 when
he arrived at the emergency room.3 This report is credible, scientific evidence that the petitioner may not have

intended to damage the building because he was intoxicated at the time the fire started.

The argument that the petitioner did not intend to

damage the building also was supported by evidence

that he was upset about his fiance ́e moving out and

taking their children with her. The petitioner’s fiance ́e

testified that when she last visited him the apartment

was in disarray. She testified that the petitioner had

piled her personal items in the room where the fire

started. The evidence at trial tended to show that this

was the origin of the fire. The fiance ́e testified that

when the petitioner called on the morning of the fire,

‘‘[h]e just wasn’t acting normal . . . .’’ I submit that

this evidence, together with the evidence that he was

impaired by alcohol, raises reasonable doubt as to

whether the petitioner purposefully set out to damage

the building, but, instead, recklessly lit fire to his fiance ́e’s personal possessions. The petitioner’s intent was

the key issue at trial, and, even though there was credible evidence available, Beck failed to advance the plausible argument that the petitioner recklessly started the

fire and did not specifically intend to damage the

building.4

Our Supreme Court previously found that defense

counsel’s ‘‘failure to present [a] relevant, plausible third

party culpability defense constituted deficient performance . . . .’’ Bryant v. Commissioner of Correction,

supra, 290 Conn. 517–18. The court reasoned that the

credible third party culpability evidence ‘‘would have

called into question the most basic elements of the

state’s case . . . . In light of all the circumstances . . .

the decision not to present the third party culpability

defense fell below an objective standard of reasonableness, and, therefore, constituted deficient performance

under the principles enunciated in Strickland.’’ Id., 520.

In the present case, I would conclude that Beck’s failure

to present evidence of intoxication was objectively

unreasonable. In light of all the circumstances, including the ample amount of circumstantial evidence presented by the state and the availability of a credible

defense, it was objectively unreasonable to refrain from

presenting that defense.

Beck reasoned that his decision was strategic

because evidence of intoxication would not ‘‘play well’’

with the jury in that it ‘‘looks like an excuse to criminal

conduct’’ and he did not want to confuse the jury with

multiple strategies. To begin, Beck’s strategy to highlight the state’s inability to prove conclusively how the

fire started and the evidence that the petitioner was

intoxicated are not inconsistent or difficult to understand. Both reinforce the argument that the petitioner

did not specifically intend to damage the building. I

hesitate to accept the bare assertion that the intoxica-
tion evidence would not ‘‘play well’’ with the jury.5

I

acknowledge the presumption that an attorney’s strategic decision is sound, but I am mindful that ‘‘[t]he United

States Supreme Court has cautioned that [t]he relevant

question is not whether counsel’s choices were strategic, but whetherthey were reasonable.’’(Internal quotation marks omitted.) Vazquez v. Commissioner of

Correction, 107 Conn. App. 181, 186, 944 A.2d 429

(2008). Although an attorney’s strategic decision usually

‘‘falls into the realm of trial strategy, which is typically

left to the discretion of trial counsel . . . it does not

follow necessarily that, in every instance, trial counsel’s

strategy concerning these decisions is sound.’’6

(Citation omitted.) Bryant v. Commissioner of Correction,

supra, 290 Conn. 521. In light of the foregoing, Beck’s

failure to present the intoxication evidence was not

objectively reasonable.

II

‘‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the

judgment. . . . [T]he petitioner [must also] demonstrate that there is a reasonable probability that, but

for that ineffectiveness, the outcome would have been

different.’’ (Citations omitted; internal quotation marks

omitted.)Id., 522. I would conclude that Beck’s deficient

performance prejudiced the petitioner at trial.

As previously stated, the petitioner’s intent was the

dispositive issue. As a result, Beck’s failure to argue

that the petitioner’s intoxication affected his ability to

form the specific intent to damage the building ‘‘had a

pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture . . . .’’

Strickland v. Washington, 466 U.S. 668, 695–96, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). The jury was presented

only with the state’s evidence and it was left to draw

the obvious inference that the petitioner intentionally

started the fire, and thereby intended to damage the

building. Beck’s failure to present credible, scientific

evidence of intoxication to call this inference into question ‘‘was exceedingly damaging to the petitioner’s

defense.’’ Bryant v. Commissioner of Correction,

supra, 290 Conn. 525.

The majority reasons that the petitioner has not

proven that he suffered prejudice because he did not

present evidence of his blood alcohol level at the precise

time of the fire and, moreover, there was no expert

testimony that his level of intoxication rose to a ‘‘substantial disturbance of mental or physical capacities

. . . .’’ The evidence indicates that the petitioner was

intoxicated at the time the fire started. See footnote

3 of this dissenting opinion. Furthermore, this court

previously has concluded that, with respect to evidence

of intoxication presented pursuant to § 53a-7, ‘‘it is not

necessary for a defendant to present evidence of the
effect of an intoxicating substance on him to require

an instruction on intoxication and specific intent. The

jury is permitted to infer from the fact that an intoxicating substance was ingested that an incapacity to form

a specific intent resulted. . . . This does not mean,

however, that only the slightest evidence of the possibility of intoxication is sufficient to require a court to give

a requested charge on intoxication and specific intent.’’

(Citation omitted.) State v. Rodriguez, 44 Conn. App.

818, 822, 692 A.2d 846, cert. denied, 242 Conn. 902, 697

A.2d 363 (1997).

The petitioner has presented more than the slightest

evidence that he was intoxicated; he submitted the

results of his blood alcohol test at the hospital. See id.,

821, 822–23 (defendant’s statement to police that he

had used drugs prior to crime, possession of a packet

of white powder, and documentation he belonged to

needle exchange program insufficient for intoxication

instruction); see also State v. Morales, 71 Conn. App.

790, 816, 804 A.2d 902 (defendant’s statement he consumed alcohol insufficient), cert. denied, 262 Conn. 902,

810A.2d 270 (2002). Had Beck offered evidence ofintoxication, the petitioner would have been entitled to an

instruction on intoxication and specific intent, which

then ‘‘permit[s] [the jury] to infer from the fact that an

intoxicating substance was ingested that an incapacity

to form the specific intent resulted.’’ State v. Rodriquez,

supra, 44 Conn. App. 822. The jury is permitted to draw

this conclusion in the absence of expert testimony and,

therefore, I disagree with the majority that expert testimony was required to demonstrate prejudice here. See

Strickland v. Washington, supra, 466 U.S. 694–95 (petitioner must show trial court proceeding would have

been different presuming jury acted according to law).

The outcome of the prejudice inquiry, therefore,

depended on whether it was reasonably probable that

the jury would have drawn the inference that the petitioner’s mental capacity was substantially disturbed had

Beck presented the credible intoxication evidence. See

id., 694, 696. ‘‘Reasonable probability does not require

the petitioner to show that counsel’s deficient conduct

more likely than not altered the outcome in the case

. . . .’’ (Internal quotation marks omitted.) Baillargeon

v. Commissioner of Correction, 67 Conn. App. 716, 722,

789 A.2d 1046 (2002). ‘‘A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.’’ Strickland v. Washington, supra, 466 U.S.

694.

At the time of the fire, the petitioner had been drinking for more than eighteen hours, consuming a liter of

tequila in that time. He drank to the point where he

could not remember the events surrounding the fire,

and he had a 0.274 blood alcohol level when he finally

reached the hospital. This evidence, and the evidence

that the origin of the fire was a pile of the petitioner’s
fiance ́e’s clothes, undermines my confidence in a conviction of arson in the first degree, which requires that

the petitioner had the specific intent to damage the

building. It is reasonably probable that, but for Beck’s

failure to present the intoxication evidence, the jury

would have inferred that the petitioner’s intoxication

caused a substantial disturbance in his mental capacity.

‘‘[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being

challenged. . . . The benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct

so undermined the properfunctioning of the adversarial

process that the trial cannot be relied on as having

produced a just result.’’ (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 689, 51 A.3d 948 (2012). Beck’s

failure to present evidence of intoxication undermined

the adversarial process and my confidence in the petitioner’s conviction of arson in the first degree. In my

view, the court abused its discretion in denying the

petition for certification to appeal. Furthermore, I

would conclude that the petitioner was denied the effective assistance of counsel and, therefore, that the

habeas court should have granted the petition for a writ

of habeas corpus.

For the foregoing reasons, I respectfully dissent.

1 Although Beck stated that his strategy was to attack the weaknesses in

the state’s case, his cross-examination of Doback—whose report, according

to Beck, was the key to creating reasonable doubt with respect to the

petitioner’s intent—consisted of eight questions. One question pertained to

the cause of the fire and established that the precise cause was undetermined.

2 The habeas court credited the petitioner’s testimony that he was in ‘‘a

coma’’ when the fire started, and interpreted this testimony as establishing

that the petitioner could not remember anything about how the fire started.

3 The evidence tended to show that the fire started at approximately

12:22 p.m. when the officers first observed smoke inside the building. The

petitioner’s blood alcohol was measured at the hospital approximately two

hours later at 2:24 p.m. The majority suggests that the hospital record is

not evidence of what the petitioner’s blood alcohol level was at the time

the fire started. The implication made by the majority is that the petitioner,

after consuming alcohol from 5 p.m. the previous evening until dawn,

stopped drinking long enough to become sober by approximately 12:22 p.m.,

and then started then fire. Subsequently, the majority implies, he then began

consuming alcohol again bringing his blood alcohol level up to 0.274 before

falling out of the third story window. In my opinion, on the basis of the

evidence, the reasonable inference is that the petitioner began drinking the

previous evening then continued drinking throughout the day of the fire,

and, therefore, the hospital report is a fair approximation of his level of

intoxication at the time the fire started.

4 This theory also is supported by the fact that there was no evidence

that the petitioner had problems with any other residents in the building.

5 Although Beck testified that intoxication evidence would not ‘‘play well’’

with the jury, he also stated that he could not recall ever advancing that

argument during his career.

6

In support of its conclusion that Beck’s strategy was reasonable, the

majority argues that the state had presented evidence which made it unlikely

that the petitioner did not specifically intend to damage the building as a

result of his intoxication because he was capable of forming the requisite

intent. See footnote 5 of the majority opinion and associated text. I submit

that this same evidence also tended to show that the petitioner was intoxicated and as a result was acting irrationally: after consuming alcohol all

night he was heard causing damage in his own apartment, he threatened
suicide, set his pets free,reentered a burning building, and refused assistance

after falling from a third story window. Moreover, the petitioner’s testimony,

which the habeas court credited, that he was unable to remember the events

of that day is additional evidence that he was intoxicated at the time of the

fire. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 351,

493 A.2d 184 (1985).

I also note that § 53a-7 defines intoxication as a substantial disturbance

in either the petitioner’s mental or physical capacity. The fact that the

petitioner was able to navigate to the third floor of the building, climb

out on the fire escape, reenter a burning building, fall out a window, and

subsequently attempt to flee, does not preclude a jury from finding that

there was a substantial impairment in the petitioner’s mental—as opposed

to physical—capacity.