Bharrat v. Commissioner of Correction, 143 A.3d 1106

Background

On December 24, 2005, Ganesh Bharrat stabbed and killed Jose Morales in Morales’ apartment, took the victim’s car, wallet and phone, and was later linked to the crime by physical evidence and incriminating statements. Bharrat was convicted of murder, felony murder (burglary predicate), first‑degree burglary and third‑degree larceny and sentenced to an effective 55 years.
On direct appeal Bharrat challenged (inter alia) the trial court’s refusal to give a diminished‑capacity instruction and a purported expansion of the felony‑murder instruction; this court affirmed and found the diminished‑capacity instruction properly denied.
Bharrat filed an amended habeas petition alleging ineffective assistance by lead trial counsel Michael Isko for (1) failing to present psychiatric expert testimony to support a diminished‑capacity instruction, and (2) failing to object to jury instructions/closing argument and to poll the jury concerning the predicate intent for burglary (assault v. larceny).
At the habeas trial the court heard testimony from Isko and psychiatrist Radhika Mehendru (who had evaluated Bharrat days before the crime). The habeas court found counsel’s investigation thorough, concluded expert testimony likely would show drug‑induced psychosis (not a viable § 53a‑13 defense), and denied relief.
The habeas court also deemed the jury‑instruction claim abandoned for lack of evidence at the habeas trial, and alternatively found no prejudice because the jury convicted on burglary and larceny counts, supporting the felony‑murder verdict. The habeas court denied certification to appeal; this appeal followed and was dismissed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not calling psychiatric expert to support diminished‑capacity instruction	Bharrat: failing to call expert was deficient and would have supported jury instruction on diminished capacity	Commissioner: counsel made a reasonable strategic decision after investigation; expert evidence likely would show voluntary intoxication and adequate impulse control	Counsel’s decision was reasonable after investigation; no debatable ineffective‑assistance claim — habeas court properly denied certification
Whether counsel was ineffective for failing to object to felony‑murder jury instruction/closing argument (predicate: assault v. larceny)	Bharrat: counsel’s failure to object/prejudice him because jury should have been limited to larceny predicate and evidence of larceny intent was insufficient	Commissioner: claim abandoned at habeas trial; alternatively jury verdict on burglary and larceny supports felony‑murder finding so no prejudice	Claim treated as abandoned at habeas trial; appeal not preserved on the sufficiency argument and certification denial was not an abuse of discretion
Whether counsel was ineffective for failing to poll the jury on which predicate (assault or larceny) supported felony murder	Bharrat: polling could have clarified the predicate and supported a challenge	Commissioner: counsel believed verdict rested on larceny predicate and did not poll; no prejudice shown	No preserved or viable prejudice shown; habeas court’s alternative prejudice ruling upheld
Whether denial of certification to appeal was an abuse of discretion under Simms/Lozada standard	Bharrat: issues are debatable among jurists and deserve encouragement	Commissioner: underlying claims lack merit; habeas court reasonably concluded appeal frivolous	Denial of certification was not an abuse of discretion; appeal dismissed

Key Cases Cited

Simms v. Warden, 229 Conn. 178 (standards for certification to appeal from habeas denial)
Lozada v. Deeds, 498 U.S. 430 (standard adopted for evaluating abuse of discretion in denying certification)
Strickland v. Washington, 466 U.S. 668 (two‑pronged ineffective assistance standard)
Small v. Commissioner of Correction, 286 Conn. 707 (application of Strickland in Connecticut habeas context)
Gaines v. Commissioner of Correction, 306 Conn. 664 (deference to habeas fact‑finding and mixed questions review)
Veal v. Warden, 28 Conn. App. 425 (reasonable strategic choice not to call expert after investigation)
State v. Bharrat, 129 Conn. App. 1 (direct appeal opinion affirming convictions and discussing diminished‑capacity instruction)
State v. Lynch, 287 Conn. 464 (requires sufficient evidence to inject a defense and obligation to give instruction if evidence supports it)
State v. Pagano, 23 Conn. App. 447 (diminished capacity requires evidence raising reasonable doubt as to specific mental state)
State v. Polanco, 308 Conn. 242 (vacatur v. merger of lesser included offenses affecting collateral consequences)