Ervin v. Comm'r of Corr.

195 Conn.App. 663

226 A.3d 708

Michael ERVIN

v.COMMISSIONER OF CORRECTION

AC 41763

Appellate Court of Connecticut.

Argued October 8, 2019

Officially released February 11, 2020

James J. Ruane, Bridgeport, assigned counsel, for the appellant (petitioner).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, New London, state's attorney, and Paul J. Narducci, senior assistant state's attorney, for the appellee (respondent).

Elgo, Devlin and Sheldon, Js.

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., at 36, 936 A.2d 290.

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 portions 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 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 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...