186 Conn. App. 398
Conn. App. Ct.2018Background
- Nicholson was convicted of first‑degree manslaughter after stabbing a neighbor during an apartment altercation; he raised a premises‑justification defense at trial.
- Trial counsel (Demirjian) sought to elicit testimony about the victim’s toxicology but the trial court granted the state’s motion in limine excluding toxicology evidence without an expert foundation; counsel did not call a toxicology expert at trial.
- Nicholson filed a habeas petition asserting ineffective assistance of counsel for failing to call an expert (Dr. Joel Milzoff) to explain drugs found in the victim’s system and to lay foundation for admission of the toxicology report.
- At the habeas trial the petitioner called Dr. Milzoff (who testified about drugs found and general effects) and called Demirjian (who testified he consulted several experts pre‑trial and none gave favorable opinions); the habeas court declined to formally qualify Milzoff as an expert and denied relief.
- The habeas court denied certification to appeal; Nicholson appealed arguing: (1) abuse of discretion in denying certification, (2) counsel was ineffective for not calling Milzoff, (3) the court erred in not treating Milzoff as an expert, and (4) the court abused discretion by not reviewing certain criminal‑trial transcript excerpts before ruling.
Issues
| Issue | Plaintiff's Argument (Nicholson) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Did habeas court abuse discretion by denying certification to appeal? | Questions were debatable and deserved encouragement to proceed. | Denial was proper because petitioner’s claims were not reasonably debatable. | Denial affirmed; petitioner failed to show issues were debatable among jurists of reason. |
| Was trial counsel ineffective for not calling an expert to testify about toxicology? | Demirjian knew of/consulted Milzoff and his failure to call him was deficient and prejudicial. | Demirjian reasonably consulted multiple experts; none gave favorable opinions, so tactical decision not to call an expert was reasonable. | No deficient performance: counsel made a reasonable tactical decision after consulting experts. |
| Did habeas court err by declining to treat Dr. Milzoff as an expert at the habeas trial, and was any error harmful? | Milzoff met qualifications and was disclosed; court’s refusal was legal error and prejudicial. | Even if error, Milzoff’s testimony would not change the ineffective‑assistance outcome (harmless). | Court erred in not formally qualifying Milzoff, but error was harmless because his testimony did not affect the court’s finding on counsel’s performance. |
| Did habeas court abuse discretion by not reviewing entire criminal transcript (or specific excerpts) before ruling? | Certain transcript excerpts (mention of Milzoff; defense testimony) would have impacted credibility and analysis. | The transcripts were irrelevant to the limited ineffective‑assistance claim and would not alter the court’s conclusion. | No abuse: given the narrow claim, the court was not required to read every excerpt; petitioner failed to identify transcript portions that would have changed the result. |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (Conn. 1994) (standard for appellate review when habeas court denies certification to appeal)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong standard for ineffective assistance of counsel)
- Hinton v. Alabama, 571 U.S. 263 (U.S. 2014) (selection of experts is a strategic choice often unchallengeable)
- Stephen S. v. Commissioner of Correction, 134 Conn. App. 801 (Conn. App. 2012) (trial counsel may reasonably rely on an expert consulted pretrial)
- Brian S. v. Commissioner of Correction, 172 Conn. App. 535 (Conn. App. 2017) (presentation of a different habeas expert does not, by itself, prove trial counsel’s performance was deficient)
- Moye v. Commissioner of Correction, 168 Conn. App. 207 (Conn. App. 2016) (scope of habeas court’s duty to review underlying trial transcript depends on the specific ineffective‑assistance claim)