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            MAURICE ROSS v. COMMISSIONER
                  OF CORRECTION
                     (AC 41091)
                         Lavine, Elgo and Bear, Js.

                                   Syllabus

The petitioner, who had been convicted of murder and carrying a pistol or
    revolver without a permit in connection with the shooting death of the
    victim, sought a writ of habeas corpus, claiming, inter alia, that his
    trial counsel had provided ineffective assistance in failing to call a
    toxicologist as an expert witness in order to present an adequate intoxi-
    cation defense. The habeas court rendered judgment denying the habeas
    petition, from which the petitioner, on the granting of certification,
    appealed to this court. Held:
1. The habeas court properly determined that trial counsel did not provide
    ineffective assistance by failing to present the expert testimony of a
    toxicologist; that court properly concluded that trial counsel’s decision
    not to present an expert witness to testify about the effects of the drugs
    the petitioner had ingested was a reasonable trial strategy in response
    to the petitioner’s unanticipated testimony that the gun had spontane-
    ously discharged.
2. The petitioner could not prevail on his claim that the habeas court erred
    in determining that trial counsel’s failure to object to certain allegedly
    improper comments of the prosecutor during closing argument did not
    constitute deficient performance; this court having determined on the
    petitioner’s direct appeal that the prosecutor’s improper comments did
    not prejudice the petitioner or deprive him of a fair trial, that determina-
    tion constituted a valid final judgment that precluded the relitigation of
    that issue under the doctrine of collateral estoppel.
           Argued January 2—officially released March 5, 2019

                             Procedural History

  Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
  Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (petitioner).
   Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Rebecca Barry, senior assistant state’s
attorney, for the appellee (respondent).
                          Opinion

   LAVINE, J. The petitioner, Maurice Ross, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. The peti-
tioner claims on appeal that the habeas court improp-
erly rejected his claim that his trial counsel provided
ineffective assistance by failing (1) to call a toxicologist
as an expert witness in order to present an adequate
intoxication defense and (2) to object to improprieties
in the prosecutor’s closing arguments. We affirm the
judgment of the habeas court.
   The following facts, as set forth by this court in
affirming the petitioner’s judgment of conviction, and
procedural history are relevant to our disposition of
the petitioner’s appeal. ‘‘In early February, 2009, the
[petitioner] and the victim, Sholanda Joyner, were
involved in a romantic relationship. The two had known
each other since they were children, and had dated
intermittently during the preceding eleven years. The
victim’s relationship with the [petitioner] was, as the
victim’s sister described it, ‘dysfunctional . . . .’
   ‘‘Several days before February 5, 2009, the [petitioner]
went to the victim’s apartment on Woolsey Street in
New Haven and encountered two of her male acquain-
tances. A physical altercation between the two men
and the [petitioner] ensued, and the [petitioner] was
forcefully ejected from the victim’s apartment. Shortly
thereafter, the [petitioner] purchased a revolver for the
purpose of killing the two men. The [petitioner]
returned to the victim’s apartment the next morning
and encountered the individuals who had assaulted him
the previous day. After displaying the revolver, the [peti-
tioner] took their money, cell phones, and some
drugs. . . .
  ‘‘On February 5, 2009, the victim appeared, crying
. . . at her father’s doorstep. Approximately two
minutes later, the [petitioner] arrived and demanded
that the victim leave with him. Over the protests of the
victim’s stepmother, the [petitioner] grabbed the victim
by the arm and pulled her out the door. Later that
evening, at the home of the victim’s grandmother, the
victim was crying and pleading with the [petitioner] to
leave her alone. The [petitioner] again commanded the
victim to depart with him, and the two left.
   ‘‘After leaving the house of the victim’s grandmother
at approximately 11 p.m., the [petitioner] and the victim
walked to the victim’s apartment. Along the way, the
victim stopped and purchased some ecstasy pills and
phencyclidine (PCP). The victim and the [petitioner]
smoked the PCP while en route to the victim’s apart-
ment. After arriving at the victim’s home, the [peti-
tioner] and the victim went into the victim’s bedroom,
and both of them ingested ecstasy. At some point, the
[petitioner] retrieved a revolver and asked the victim
if she had ‘set [him] up . . . .’ The [petitioner] then
fired one gunshot into her head, intentionally killing
her. . . .
   ‘‘The [petitioner] was arrested and charged with mur-
der in violation of [General Statutes] § 53a-54a (a), and
carrying a pistol or revolver without a permit in viola-
tion of [General Statutes] § 29-35 (a). At trial, the [peti-
tioner] testified and admitted that he shot the victim.
He claimed, however, that the gun had fired acciden-
tally. The jury found the [petitioner] guilty of both
charges. The court subsequently sentenced him to a
total effective term of sixty years in prison.’’ (Footnote
omitted.) State v. Ross, 151 Conn. App. 687, 688–91, 95
A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d 271
(2014). On April 28, 2017, the petitioner filed an
amended petition for writ of habeas corpus. On Novem-
ber 6, 2017, after a trial, the habeas court denied the
petition and on November 15, 2017, granted the petition-
er’s petition for certification to appeal. This appeal fol-
lowed. Additional facts will be set forth as necessary.
   ‘‘It is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings . . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)], this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . A claim of ineffective assistance of
counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . The second prong is . . . satisfied if the peti-
tioner can demonstrate that there is a reasonable proba-
bility that, but for that ineffectiveness, the outcome
would have been different. . . . An ineffective assis-
tance of counsel claim will succeed only if both prongs
[of Strickland] are satisfied.’’ (Citations omitted; inter-
nal quotation marks omitted.) Sanders v. Commis-
sioner of Correction, 169 Conn. App. 813, 823, 153 A.3d 8
(2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).
   ‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Mourning v. Commissioner of Correc-
tion, 169 Conn. App. 444, 449, 150 A.3d 1166 (2016),
cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017).
                              I
   The petitioner first claims that the habeas court
improperly determined that trial counsel did not render
ineffective assistance by failing to present the expert
testimony of a toxicologist. The essence of the petition-
er’s argument is that this failure constituted deficient
performance because the jury needed expert testimony
to understand the scientific basis underlying the peti-
tioner’s intoxication defense and to properly determine
whether the effects of the drugs he ingested could affect
his ability to form the intent needed for a murder convic-
tion. We are unpersuaded.
   The following additional facts, as found by the habeas
court, are relevant to the resolution of this claim. ‘‘[Trial
counsel] consulted with an expert witness . . . Caro-
line Easton, [Ph.D,] about the influence that ingestion
of ecstasy . . . and [PCP] typically exerts on people
and may have exerted on the petitioner, in particular.
. . . Easton was ready to testify at the petitioner’s crim-
inal trial that the illicit drugs consumed by the petitioner
before the shooting can cause vivid delusions and visual
and auditory hallucinations. . . .
   ‘‘[Trial counsel] encountered an unexpected problem
at the criminal trial in establishing a foundation for
. . . Easton’s testimony. The difficulty arose because
the petitioner altered his version of events surrounding
the shooting when he spoke to the state’s expert and
on the witness stand at his trial from that which he
discussed with . . . Easton. The petitioner’s later
description attributed the firing of the weapon to an
accidental discharge as he was attempting to put his
pistol down rather than as the result of drug-induced
derangement of his perceptions about his environment.
This description conflicted with that which the peti-
tioner had recounted to . . . Easton.
   ‘‘[Trial counsel] asked . . . Easton to remain in
attendance at the courthouse in case the petitioner’s
testimony reflected his earlier recitation . . . . How-
ever, once the petitioner ascribed the firing of the gun
as purely the result of the accidental mishandling of the
weapon, [trial counsel] chose to release . . . Easton.’’
   The habeas court concluded that trial counsel’s deci-
sion not to call Easton1 to testify did not amount to
deficient performance, stating that trial counsel’s
‘‘assessment of the nonutility of [Easton’s] testimony
[was] within the realm of competent legal assistance.
It is commonly understood that juries look askance at
alternative defenses such as, ‘I didn’t do it, but if I
did do it, I have a good excuse.’ ’’ We agree with the
habeas court.
  ‘‘[T]here is no requirement that counsel call an expert
when he has developed a different trial strategy.’’ Ste-
phen J. R. v. Commissioner of Correction, 178 Conn.
995, 175 A.3d 1246 (2018). ‘‘[T]here is no per se rule
that requires a trial attorney to seek out an expert wit-
ness. . . . Furthermore, trial counsel is entitled to
make strategic choices in preparation for trial.’’ (Inter-
nal quotation marks omitted.) Brian S. v. Commis-
sioner of Correction, 172 Conn. App. 535, 542, 160 A.3d
1110, cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017).
‘‘The reasonableness of counsel’s actions may be deter-
mined or substantially influenced by the [petitioner’s]
own statements or actions.’’ Strickland v. Washington,
supra, 466 U.S. 691.
   In the present case, trial counsel’s decision not to
present an expert witness to testify about the effects
of the drugs the petitioner ingested was a reasonable
trial strategy in response to the petitioner’s unantici-
pated testimony that the gun spontaneously discharged
as he was attempting to put it down on the bedroom
dresser. The petitioner, therefore, fails to meet his bur-
den in demonstrating that he received deficient perfor-
mance from his trial counsel. We conclude that the
habeas court properly determined that trial counsel
did not render ineffective assistance by not presenting
expert testimony.
                             II
  The petitioner next claims that the habeas court erred
in determining that counsel’s failure to object to the
prosecutor’s improper comments made during closing
argument did not constitute deficient performance.
We disagree.
  First, we note that ‘‘[t]he decision of a trial lawyer
not to make an objection is a matter of trial tactics,
not evidence of incompetency. . . . [T]here is a strong
presumption that the trial strategy employed by a crimi-
nal [defendant’s] counsel is reasonable and is a result of
the exercise of professional judgment . . . .’’ (Internal
quotation marks omitted.) Moore v. Commissioner of
Correction, 119 Conn. App. 530, 543, 988 A.2d 881, cert.
denied, 296 Conn. 902, 991 A.2d 1103 (2010).
   In the present matter, trial counsel specifically testi-
fied before the habeas court that he ‘‘did not want to
highlight’’ the improper comments, was ‘‘not confident
that it was a winner’’ because ‘‘judges tend to give a
fair leniency to the interpretation of evidence,’’ and that
he tries not to object unless he feels ‘‘very strongly
that [he has] a winner’’ because ‘‘when you interrupt
someone in an argument, you get really bad vibes out
of a jury.’’ As this court stated on the petitioner’s direct
appeal, ‘‘defense counsel may elect not to object to
arguments . . . that he or she deems marginally objec-
tionable for tactical reasons . . . .’’ (Internal quotation
marks omitted.) State v. Ross, supra, 151 Conn. App.
702.
  We need not, however, address whether trial coun-
sel’s failure to object constituted ineffective assistance,
as this court, on direct appeal, has already determined
that the prosecutor’s improper comments did not preju-
dice the petitioner. Id., 705-706. ‘‘A court deciding an
ineffective assistance of counsel claim need not address
the question of counsel’s performance, if it is easier
to dispose of the claim on the ground of insufficient
prejudice.’’ Nardini v. Manson, 207 Conn. 118, 124, 540
A.2d 69 (1988).
   The petitioner claimed on direct appeal that ‘‘he was
deprived of his constitutional right to a fair trial by
prosecutorial impropriety. Specifically, [he] argue[d]
that during closing and rebuttal argument, the prosecu-
tor improperly argued facts not in evidence and
appealed to the jury’s emotions. [This court] agree[d]
with the [petitioner] that at least one of the prosecutor’s
comments was improper, but conclude[d] that any
improprieties did not deprive the [petitioner] of a fair
trial.’’ State v. Ross, supra, 151 Conn. App. 688.
   ‘‘The fundamental principles underlying the doctrine
of collateral estoppel are well established. The com-
mon-law doctrine of collateral estoppel, or issue preclu-
sion, embodies a judicial policy in favor of judicial
economy, the stability of former judgments and finality.
. . . Collateral estoppel means simply that when an
issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.
. . . Issue preclusion arises when an issue is actually
litigated and determined by a valid and final judgment,
and that determination is essential to the judgment.
. . . Collateral estoppel express[es] no more than the
fundamental principle that once a matter has been fully
and fairly litigated, and finally decided, it comes to
rest.’’ (Internal quotation marks omitted.) Cumberland
Farms, Inc. v. Groton, 262 Conn. 45, 58, 808 A.2d 1107
(2002). This court’s determination in the petitioner’s
direct appeal that the prosecutor’s improper comments
did not cause prejudice to the petitioner constitutes a
final judgment that precludes any relitigation of this
issue.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The petitioner additionally argues that counsel’s having retained Easton,
who is not a physician, was not adequate to address his intoxication defense
as ‘‘she simply could not do what a [toxicologist] could: explain these drugs
so that the jury could comprehend them.’’ The record is inadequate to
address such a claim. ‘‘It is a well established principle of appellate procedure
that the [petitioner] has the duty of providing this court with a record
adequate to afford review.’’ (Internal quotation marks omitted.) Blum v.
Blum, 109 Conn. App. 316, 331, 951 A.2d 587, cert. denied, 289 Conn. 929,
958 A.2d 157 (2008). Moreover, the petitioner’s intoxication defense was
not viable due to the petitioner’s testimony describing the discharge of the
gun as an accident, thus rendering this argument moot.
