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      RAMEY v. COMMISSIONER OF CORRECTION—DISSENT

   PELLEGRINO, J., dissenting. I respectfully dissent. I
do not agree that the petitioner’s trial attorney’s ‘‘strat-
egy’’ to avoid proving and arguing that the petitioner,
Ryan Ramey, was intoxicated would in any way have
detracted from his primary thrust that the state’s own
witness could not opine how the fire started and, as a
result, the petitioner had a good chance at acquittal. It
is logical and certainly consistent with the evidence to
argue that the state could not prove its case that the
petitioner started the fire and that, even if the jury found
beyond a reasonable doubt that he did start the fire,
he certainly could not be guilty of first degree arson
because he was intoxicated and did not have the spe-
cific intent to commit the crime. These are not inconsis-
tent arguments, and the fact that they were not made
deprived the jury of the opportunity to consider a lesser
included crime and, ultimately, deprived the petitioner
of the chance that he could have faced a lesser penalty.
The petitioner’s trial attorney, Attorney H. Jeffrey Beck,
should not be allowed to hide behind the ‘‘trial strategy’’
shield to override what I believe to be ineffective repre-
sentation. Accordingly, I conclude that the habeas court
abused its discretion in denying certification to appeal,
and I would reverse the judgment denying the petition
for a writ of habeas corpus.
                             I
   Appellate review of counsel’s performance ‘‘requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time [of
trial].’’ (Internal quotation marks omitted.) Bryant v.
Commissioner of Correction, 290 Conn. 502, 512, 964
A.2d 1186, cert. denied sub nom. Murphy v. Bryant,
558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).
Due to the amount of circumstantial evidence adduced
at trial, the jury only could have drawn one reasonable
conclusion—the petitioner started the fire in question.
The record reflects that the petitioner was the only
person in the building at the time the fire started. The
fire marshal, Charles R. Doback, Jr., testified on the
basis of his report that it was ‘‘very obvious’’ that the
fire started in the room in the petitioner’s apartment
where the responding officers observed the petitioner.
Although Doback did testify that he could not determine
exactly how the fire started, he was able to rule out
several potential accidental causes. On cross-examina-
tion, Beck never raised the possibility that there may
have been other potential accidental causes of the fire
that Doback had not ruled out. Doback’s testimony
as a whole left the impression that the fire was not
accidental. Furthermore, even though Doback testified
that there was no evidence that accelerants were used
to start the fire, he made it clear that the fire could
have been set intentionally without using an accelerant.
In sum, the state’s evidence was that the petitioner was
the only occupant of the building at the time that the
fire was set, and the state’s fire investigator ruled out
any accidental causes that he considered.1
   As a matter of common sense, the only reasonable
conclusion based on these facts was that the petitioner
intentionally started the fire. See State v. Rodgers, 198
Conn. 53, 59, 502 A.2d 360 (1985) (‘‘jury must rely on
its common sense, experience and knowledge of human
nature’’). The only possible alternative explanation for
the fire was that, by pure coincidence, a fire started
in the petitioner’s apartment on the same day that he
threatened suicide, barricaded himself inside the build-
ing, and was surrounded by police. This theory defies
common sense. Absent evidence to the contrary, the
state’s evidence led to the conclusion that the petitioner
intended to set the fire, which in turn invites a strong
inference that the petitioner intended to damage the
building. See State v. Coleman, 304 Conn. 161, 167–68,
37 A.3d 713 (2012) (specific intent to commit murder
inferred from defendant’s conduct and weapon used);
State v. Ayala, 133 Conn. App. 514, 519–20, 36 A.3d
274 (specific intent to prevent individual’s liberation
inferred from threatening victim’s life and ordering her
to sit on couch), cert. denied, 304 Conn. 913, 40 A.3d 318
(2012). As this court stated previously in the petitioner’s
direct appeal, the state provided ‘‘ample circumstantial
evidence from which the jury reasonably could have
inferred that the [petitioner] possessed the requisite
intent to damage the building at the time that he started
the fire.’’ State v. Ramey, 127 Conn. App. 560, 568, 14
A.3d 474, cert. denied, 301 Conn. 910, 19 A.3d 177 (2011).
   The only reasonable strategy in light of the state’s
evidence was not to claim that the evidence was insuffi-
cient, but to argue that, although the fire intentionally
was set, the petitioner recklessly caused damage to the
building as opposed to specifically intending to do so.
The petitioner’s intent at the time the fire started was
central to the outcome of the case. Beck’s performance
was deficient because he failed to respond to the state’s
circumstantial case with the credible evidence available
to him that demonstrated the petitioner did not specifi-
cally intend to damage the building.
  The most persuasive evidence that the petitioner did
not specifically intend to damage the building was that
he was intoxicated at the time the fire started. See
General Statutes § 53a-7 (evidence of intoxication can
negate evidence of specific intent). At the habeas trial,
the petitioner testified that he began drinking at 5 p.m.
on the evening before the fire, and continued to drink
with friends until dawn.2 The hospital report indicated
that the petitioner’s blood alcohol level was 0.274 when
he arrived at the emergency room.3 This report is credi-
ble, scientific evidence that the petitioner may not have
intended to damage the building because he was intoxi-
cated at the time the fire started.
     The argument that the petitioner did not intend to
damage the building also was supported by evidence
                                      ´
that he was upset about his fiancee moving out and
taking their children with her. The petitioner’s fiancee  ´
testified that when she last visited him the apartment
was in disarray. She testified that the petitioner had
piled her personal items in the room where the fire
started. The evidence at trial tended to show that this
                                         ´
was the origin of the fire. The fiancee testified that
when the petitioner called on the morning of the fire,
‘‘[h]e just wasn’t acting normal . . . .’’ I submit that
this evidence, together with the evidence that he was
impaired by alcohol, raises reasonable doubt as to
whether the petitioner purposefully set out to damage
the building, but, instead, recklessly lit fire to his fian-
   ´
cee’s personal possessions. The petitioner’s intent was
the key issue at trial, and, even though there was credi-
ble evidence available, Beck failed to advance the plau-
sible argument that the petitioner recklessly started the
fire and did not specifically intend to damage the
building.4
   Our Supreme Court previously found that defense
counsel’s ‘‘failure to present [a] relevant, plausible third
party culpability defense constituted deficient perfor-
mance . . . .’’ Bryant v. Commissioner of Correction,
supra, 290 Conn. 517–18. The court reasoned that the
credible third party culpability evidence ‘‘would have
called into question the most basic elements of the
state’s case . . . . In light of all the circumstances . . .
the decision not to present the third party culpability
defense fell below an objective standard of reasonable-
ness, and, therefore, constituted deficient performance
under the principles enunciated in Strickland.’’ Id., 520.
In the present case, I would conclude that Beck’s failure
to present evidence of intoxication was objectively
unreasonable. In light of all the circumstances, includ-
ing the ample amount of circumstantial evidence pre-
sented by the state and the availability of a credible
defense, it was objectively unreasonable to refrain from
presenting that defense.
   Beck reasoned that his decision was strategic
because evidence of intoxication would not ‘‘play well’’
with the jury in that it ‘‘looks like an excuse to criminal
conduct’’ and he did not want to confuse the jury with
multiple strategies. To begin, Beck’s strategy to high-
light the state’s inability to prove conclusively how the
fire started and the evidence that the petitioner was
intoxicated are not inconsistent or difficult to under-
stand. Both reinforce the argument that the petitioner
did not specifically intend to damage the building. I
hesitate to accept the bare assertion that the intoxica-
tion evidence would not ‘‘play well’’ with the jury.5 I
acknowledge the presumption that an attorney’s strate-
gic decision is sound, but I am mindful that ‘‘[t]he United
States Supreme Court has cautioned that [t]he relevant
question is not whether counsel’s choices were strate-
gic, but whether they were reasonable.’’ (Internal quota-
tion marks omitted.) Vazquez v. Commissioner of
Correction, 107 Conn. App. 181, 186, 944 A.2d 429
(2008). Although an attorney’s strategic decision usually
‘‘falls into the realm of trial strategy, which is typically
left to the discretion of trial counsel . . . it does not
follow necessarily that, in every instance, trial counsel’s
strategy concerning these decisions is sound.’’6 (Cita-
tion omitted.) Bryant v. Commissioner of Correction,
supra, 290 Conn. 521. In light of the foregoing, Beck’s
failure to present the intoxication evidence was not
objectively reasonable.
                             II
   ‘‘An error by counsel, even if professionally unreason-
able, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the
judgment. . . . [T]he petitioner [must also] demon-
strate that there is a reasonable probability that, but
for that ineffectiveness, the outcome would have been
different.’’ (Citations omitted; internal quotation marks
omitted.) Id., 522. I would conclude that Beck’s deficient
performance prejudiced the petitioner at trial.
   As previously stated, the petitioner’s intent was the
dispositive issue. As a result, Beck’s failure to argue
that the petitioner’s intoxication affected his ability to
form the specific intent to damage the building ‘‘had a
pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture . . . .’’
Strickland v. Washington, 466 U.S. 668, 695–96, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). The jury was presented
only with the state’s evidence and it was left to draw
the obvious inference that the petitioner intentionally
started the fire, and thereby intended to damage the
building. Beck’s failure to present credible, scientific
evidence of intoxication to call this inference into ques-
tion ‘‘was exceedingly damaging to the petitioner’s
defense.’’ Bryant v. Commissioner of Correction,
supra, 290 Conn. 525.
   The majority reasons that the petitioner has not
proven that he suffered prejudice because he did not
present evidence of his blood alcohol level at the precise
time of the fire and, moreover, there was no expert
testimony that his level of intoxication rose to a ‘‘sub-
stantial disturbance of mental or physical capacities
. . . .’’ The evidence indicates that the petitioner was
intoxicated at the time the fire started. See footnote
3 of this dissenting opinion. Furthermore, this court
previously has concluded that, with respect to evidence
of intoxication presented pursuant to § 53a-7, ‘‘it is not
necessary for a defendant to present evidence of the
effect of an intoxicating substance on him to require
an instruction on intoxication and specific intent. The
jury is permitted to infer from the fact that an intoxicat-
ing substance was ingested that an incapacity to form
a specific intent resulted. . . . This does not mean,
however, that only the slightest evidence of the possibil-
ity of intoxication is sufficient to require a court to give
a requested charge on intoxication and specific intent.’’
(Citation omitted.) State v. Rodriguez, 44 Conn. App.
818, 822, 692 A.2d 846, cert. denied, 242 Conn. 902, 697
A.2d 363 (1997).
   The petitioner has presented more than the slightest
evidence that he was intoxicated; he submitted the
results of his blood alcohol test at the hospital. See id.,
821, 822–23 (defendant’s statement to police that he
had used drugs prior to crime, possession of a packet
of white powder, and documentation he belonged to
needle exchange program insufficient for intoxication
instruction); see also State v. Morales, 71 Conn. App.
790, 816, 804 A.2d 902 (defendant’s statement he con-
sumed alcohol insufficient), cert. denied, 262 Conn. 902,
810 A.2d 270 (2002). Had Beck offered evidence of intox-
ication, the petitioner would have been entitled to an
instruction on intoxication and specific intent, which
then ‘‘permit[s] [the jury] to infer from the fact that an
intoxicating substance was ingested that an incapacity
to form the specific intent resulted.’’ State v. Rodriquez,
supra, 44 Conn. App. 822. The jury is permitted to draw
this conclusion in the absence of expert testimony and,
therefore, I disagree with the majority that expert testi-
mony was required to demonstrate prejudice here. See
Strickland v. Washington, supra, 466 U.S. 694–95 (peti-
tioner must show trial court proceeding would have
been different presuming jury acted according to law).
   The outcome of the prejudice inquiry, therefore,
depended on whether it was reasonably probable that
the jury would have drawn the inference that the peti-
tioner’s mental capacity was substantially disturbed had
Beck presented the credible intoxication evidence. See
id., 694, 696. ‘‘Reasonable probability does not require
the petitioner to show that counsel’s deficient conduct
more likely than not altered the outcome in the case
. . . .’’ (Internal quotation marks omitted.) Baillargeon
v. Commissioner of Correction, 67 Conn. App. 716, 722,
789 A.2d 1046 (2002). ‘‘A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.’’ Strickland v. Washington, supra, 466 U.S.
694.
  At the time of the fire, the petitioner had been drink-
ing for more than eighteen hours, consuming a liter of
tequila in that time. He drank to the point where he
could not remember the events surrounding the fire,
and he had a 0.274 blood alcohol level when he finally
reached the hospital. This evidence, and the evidence
that the origin of the fire was a pile of the petitioner’s
      ´
fiancee’s clothes, undermines my confidence in a con-
viction of arson in the first degree, which requires that
the petitioner had the specific intent to damage the
building. It is reasonably probable that, but for Beck’s
failure to present the intoxication evidence, the jury
would have inferred that the petitioner’s intoxication
caused a substantial disturbance in his mental capacity.
   ‘‘[T]he ultimate focus of inquiry must be on the funda-
mental fairness of the proceeding whose result is being
challenged. . . . The benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.’’ (Citation omitted; internal quo-
tation marks omitted.) Gaines v. Commissioner of Cor-
rection, 306 Conn. 664, 689, 51 A.3d 948 (2012). Beck’s
failure to present evidence of intoxication undermined
the adversarial process and my confidence in the peti-
tioner’s conviction of arson in the first degree. In my
view, the court abused its discretion in denying the
petition for certification to appeal. Furthermore, I
would conclude that the petitioner was denied the effec-
tive assistance of counsel and, therefore, that the
habeas court should have granted the petition for a writ
of habeas corpus.
      For the foregoing reasons, I respectfully dissent.
  1
     Although Beck stated that his strategy was to attack the weaknesses in
the state’s case, his cross-examination of Doback—whose report, according
to Beck, was the key to creating reasonable doubt with respect to the
petitioner’s intent—consisted of eight questions. One question pertained to
the cause of the fire and established that the precise cause was unde-
termined.
   2
     The habeas court credited the petitioner’s testimony that he was in ‘‘a
coma’’ when the fire started, and interpreted this testimony as establishing
that the petitioner could not remember anything about how the fire started.
   3
     The evidence tended to show that the fire started at approximately
12:22 p.m. when the officers first observed smoke inside the building. The
petitioner’s blood alcohol was measured at the hospital approximately two
hours later at 2:24 p.m. The majority suggests that the hospital record is
not evidence of what the petitioner’s blood alcohol level was at the time
the fire started. The implication made by the majority is that the petitioner,
after consuming alcohol from 5 p.m. the previous evening until dawn,
stopped drinking long enough to become sober by approximately 12:22 p.m.,
and then started then fire. Subsequently, the majority implies, he then began
consuming alcohol again bringing his blood alcohol level up to 0.274 before
falling out of the third story window. In my opinion, on the basis of the
evidence, the reasonable inference is that the petitioner began drinking the
previous evening then continued drinking throughout the day of the fire,
and, therefore, the hospital report is a fair approximation of his level of
intoxication at the time the fire started.
   4
     This theory also is supported by the fact that there was no evidence
that the petitioner had problems with any other residents in the building.
   5
     Although Beck testified that intoxication evidence would not ‘‘play well’’
with the jury, he also stated that he could not recall ever advancing that
argument during his career.
   6
     In support of its conclusion that Beck’s strategy was reasonable, the
majority argues that the state had presented evidence which made it unlikely
that the petitioner did not specifically intend to damage the building as a
result of his intoxication because he was capable of forming the requisite
intent. See footnote 5 of the majority opinion and associated text. I submit
that this same evidence also tended to show that the petitioner was intoxi-
cated and as a result was acting irrationally: after consuming alcohol all
night he was heard causing damage in his own apartment, he threatened
suicide, set his pets free, reentered a burning building, and refused assistance
after falling from a third story window. Moreover, the petitioner’s testimony,
which the habeas court credited, that he was unable to remember the events
of that day is additional evidence that he was intoxicated at the time of the
fire. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 351,
493 A.2d 184 (1985).
   I also note that § 53a-7 defines intoxication as a substantial disturbance
in either the petitioner’s mental or physical capacity. The fact that the
petitioner was able to navigate to the third floor of the building, climb
out on the fire escape, reenter a burning building, fall out a window, and
subsequently attempt to flee, does not preclude a jury from finding that
there was a substantial impairment in the petitioner’s mental—as opposed
to physical—capacity.
