Zubrowski v. Comm'r of Corr.

209 Conn.App. 828

267 A.3d 938

Casmier ZUBROWSKI

v.COMMISSIONER OF CORRECTION

AC 43981

Appellate Court of Connecticut.

Argued September 21, 2021

Officially released January 11, 2022

Andrew P. O'Shea, West Hartford, for the appellant (petitioner).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and Tamara Grosso, former assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Moll and Bear, Js.

BEAR, J.

The petitioner, Casmier Zubrowski, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court incorrectly concluded that his trial counsel did not provide ineffective assistance as defined in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts, as recited by this court in the petitioner's direct appeal, and procedural history are relevant to our resolution of this appeal. "On January 1, 2002, the [petitioner] and his wife, the victim, lived in a condominium complex in Bristol. At approximately 7 or 8 p.m., on December 31, 2001, the [petitioner] invited his brother, Bruno Zubrowski [Bruno], who lived in the same complex, to celebrate New Year's Eve with them at their condominium. During the evening, the brothers and the victim consumed substantial amounts of alcohol, including beer, vodka and schnapps. The [petitioner] consumed most of the vodka and also drank one to two beers. At approximately 10 p.m., an argument ensued concerning the cause of a hole in the drywall in the [petitioner's] home. Feeling uncomfortable with this argument, [Bruno] decided to return to his own condominium. The [petitioner] accompanied his brother back to his condominium where he ‘picked up a couple of beers’ after which he returned home.

"At 12:53 a.m., Officer Albert Myers, a dispatcher for the Bristol [P]olice [D]epartment, received a 911 call from the [petitioner], who told the officer that his wife was dead, that she had slashed her throat and that she was not breathing. After Myers advised the [petitioner] that assistance would be sent promptly, the [petitioner] stated, ‘immediately, I mean, this—this may not be half an hour ago. I was upstairs, you know. I don't—the blood is all over.’ Although the call was terminated abruptly, Myers called back and asked what had happened. The [petitioner] again requested assistance, stating that he thought his wife was dead. Also, in response to Myers' questions, the [petitioner] reiterated that he did not know what had happened, that he and his wife had gotten into an argument and that his wife said that she was going to slash her throat. The [petitioner] also stated that he had gone upstairs and then had returned downstairs, and ‘there was blood all over.’

"Officers Lawrence DeSimone and Thomas Grimaldi responded to the 911 call, arriving at the [petitioner's] home while he was still talking on the phone with Myers. When the officers knocked on the door, the [petitioner] responded, clad only in white, blood spattered briefs. He told the officers that ‘his wife had cut her throat and she was dead.’ The officers and the [petitioner] then walked to the kitchen where the victim was lying motionless on her back on the floor with a substantial amount of blood spread about the kitchen area. The officers also noted that the victim had lacerations about her throat and face and that a knife lay adjacent to her. Faced with this scene, Grimaldi asked DeSimone to take the [petitioner] into the living room.

"Once DeSimone escorted the [petitioner] into the living room, he had the [petitioner] sit down and he asked him, ‘what happened?’ The [petitioner] stated that when he arrived home from work, he had found his brother and his wife drinking and that his brother had left shortly after he arrived. He told DeSimone that he and his wife argued about a hole in the drywall at the base of the stairwell and that she said she was going to cut her throat. The [petitioner] stated that because she had made the same threat before, he did not take it seriously and went to bed. He further stated that one hour later, while he was upstairs, he heard a loud crash and called out and heard no answer. He then went downstairs where he found his wife lying on the kitchen floor. He turned her over and attempted to resuscitate her and then ran to his brother's condominium. Getting no response from his brother, he returned home and called the police.

"From the house, DeSimone and Grimaldi called Detective Kevin Hayes to investigate. After introducing himself to the [petitioner], Hayes asked the [petitioner] to come to the police station and make a statement. At that juncture and unprovoked by any questioning from Hayes, the [petitioner] told him that ‘she killed herself, you know, she cut her throat, you know,’ which, in essence, was the same information he had disclosed to the 911 dispatcher and DeSimone. The [petitioner] agreed to accompany Hayes to the police station where he made a written statement, the contents of which were similar to the version of events that he had given to the police at his home.

"The [petitioner] subsequently was charged with murder in violation of [General Statutes] § 53a-54a. After the jury found the [petitioner] guilty, he was sentenced to a total effective term of imprisonment of thirty-five years." State v. Zubrowski , 101 Conn. App. 379, 381–83, 921 A.2d 667 (2007), appeal dismissed, 289 Conn. 55, 956 A.2d 578 (2008), cert. denied, Zubrowski v. Connecticut , 555 U.S. 1216, 129 S. Ct. 1533, 173 L. Ed. 2d 663 (2009). The petitioner was represented at his criminal trial by attorneys Jeffrey Kestenband and William Paetzold.

On September 14, 2017, the petitioner filed a petition for a writ of habeas corpus, alleging that his constitutional right to the effective assistance of counsel had been violated. The petitioner's ineffective assistance claims were premised on three allegations of deficient performance, namely, that trial counsel failed to (1) adequately consult with and present the testimony of a crime scene reconstruction expert, (2) adequately consult with and present the testimony of a forensic toxicologist or present another source of evidence regarding the effects of his prescription medications, and (3) adequately object to or otherwise seek to preclude the testimony of the petitioner's daughter, Beata Zubrowski (Beata).¹

On February 10, 2020, after a trial, the habeas court rendered judgment denying the petition for a writ of habeas corpus after concluding that "[t]he petitioner ... failed to prove his claims of ineffective assistance by Attorneys Kestenband and Paetzold." On February 20, 2020, the petitioner filed a petition for certification to appeal from the habeas court's denial of his three claims of ineffective assistance, which petition was granted by the habeas court, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

We begin by setting forth our standard of review and the legal standards relevant to the petitioner's claims. Although "[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous"; (internal quotation marks omitted) Mozell v. Commissioner of Correction , 87 Conn. App. 560, 564–65, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005) ; "the effectiveness of an attorney's representation of a criminal defendant is a mixed determination of law and fact that ... requires plenary review ...." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction , 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006).

"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong." (Internal quotation marks omitted.) Small v. Commissioner of Correction , 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

When reviewing a claim of ineffective assistance of counsel, a "court can find against a petitioner on either ground, whichever is easier." Valeriano v. Bronson , 209 Conn. 75, 86, 546 A.2d 1380 (1988). To satisfy the performance prong of Strickland , a petitioner must show that counsel's representation "fell below an objective standard of reasonableness in order to establish ineffective performance. ... In other words, the petitioner must demonstrate that [counsel's] representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... In analyzing [counsel's] performance, we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance .... The petitioner bears the burden of overcoming this presumption." (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction , supra, 275 Conn. at 460, 880 A.2d 160. To satisfy the prejudice prong of Strickland , "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." (Internal quotation marks omitted.) Id., at 458, 880 A.2d 160.

I

The petitioner's first claim is that his right to the effective assistance of counsel was violated by the failure of Kestenband and Paetzold to consult with and present the testimony of a crime scene reconstruction expert.² Specifica...