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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 consistent 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 compression 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 appellant (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 dispatched to [the petitioner’s home], discovered the unresponsive 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 compression. During the trial, the medical examiner viewed

a demonstration videotape showing a certain type of

wrestling hold once used by the [petitioner] and testified 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 victim 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 violation of General Statutes § 53a-54a (a), for which the

trial court sentenced him to a term of sixty years incarceration. 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 relevant 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 victim’s injuries were consistent with choke hold neck

compression, although Dr. Taff could not rule out choking 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 petitioner’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 disposition.

‘‘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 connected 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 McIntyre 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 victim’s mouth was probably the result of agonal regurgitation, i.e., vomit expelled as the body ceases to function.

‘‘When he consulted Dr. Taff, Attorney McIntyre revisited 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 considered 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 crossexamination 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 vigorous 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 . . . supported the opinion of the chief medical examiner . . . .

[I]mportantly, the petitioner grossly downplays the devastating evidence [introduced at trial].’’ The court summarized such ‘‘devastating evidence’’ as follows: ‘‘[E]vidence 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 statements to [the] police that he never intended to live

with Champlin.’’2
In addressing the petitioner’s claim that counsel presented inadequate argument on the motion for a judgment 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 Hancin, 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 preparation takes approximately one minute per dart. Throughout 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 discover [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 witnesses 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 petitioner’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 concluded 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 produce 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 support 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 underlying claims. ‘‘The habeas court is afforded broad discretion 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 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.

. . .

‘‘[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 assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance 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 criminal 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 assistance 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 omitted.) 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 rendered 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 compression. The respondent, the Commissioner of Correction, 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. Commissioner 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 concluded not to use the expert witness at trial after

determining that such testimony would not benefit the

petitioner’s defense’’); see also Santiago v. Commissioner 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 considered strategic choices.’’ (Citation omitted; internal quotation marks omitted.) Santos v. Commissioner of Correction, 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 crossexamination 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 alternative 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 performance in basing his argument solely on the only

defense theory approved by the petitioner and presented at trial—that the victim had died from accidentally choking on food—was professionally appropriate,

and because such performance could not have prejudiced the petitioner due to the abundance of other evidence 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 quotation 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 insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction

we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so

construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defendant 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 quotation 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 defendant’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 someone 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. Bonilla, 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 immediately 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 petitioner 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, however, 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, understandably 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. Washington, 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 inference that the petitioner had intentionally killed the victim. Such evidence, more particularly, supports complementary 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 children’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 unaccounted 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, unprepared 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 distressed 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 abandoned 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).