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GREGG MADIGOSKY v. COMMISSIONER OF
CORRECTION
(AC 38962)
Beach, Mullins and Bear, Js.*
Argued November 29, 2016—officially released April 11, 2017
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Norman A. Pattis, with whom, on the brief, was
Brittany B. Paz, for the appellant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Jo Anne Sulik, supervisory assistant state’s attorney,
for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Gregg Madigosky, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The petitioner
claims that the court erred in concluding that he failed
to prove ineffective assistance of counsel by not ade-
quately preparing an expert witness. We affirm the judg-
ment of the habeas court.
The following facts regarding the underlying criminal
conviction were set forth by our Supreme Court on
direct appeal. ‘‘The [petitioner] and Lynn Bossert, the
victim, began living together in 1993. During their rela-
tionship, he was gainfully employed as a draftsman
for Sikorsky Aircraft Corporation. As their relationship
continued, the [petitioner] grew suspicious about the
victim’s fidelity, and when she became pregnant, he
questioned whether he was the father of the baby. In
March, 2003, the victim gave birth to a girl, two months
premature. The victim and the [petitioner] later hired
a nanny, Delores Sowa, to care for the baby while both
parents worked.
‘‘On September 11, 2003, the [petitioner] arrived home
from work at approximately 5:50 p.m., took over the
care of the baby and received the daily report from
Sowa before she left. When the victim arrived home,
she and the [petitioner], along with the baby, went to
a previously scheduled counseling session with a family
and marriage therapist, Julie M. Sowell, whom the cou-
ple had been seeing for the previous five months. The
counseling session ended at 7:45 p.m.
‘‘Sometime after 9 p.m. that evening, the [petitioner]
and the victim had an altercation in their home, during
which the [petitioner] pushed the victim and then stran-
gled her to death. In strangling the victim, the [peti-
tioner] used both of his hands and a dog leash. The
strangulation caused extensive petechial hemorrhaging
and edema, which indicated that force had been applied
to the victim’s neck for a prolonged length of time. The
[petitioner] stopped applying pressure to the victim’s
neck only after she had ceased struggling. He then
ripped a locket from the victim’s neck and left her
body lying on the floor in a pool of blood. Sometime
thereafter, the [petitioner] wrote what appeared to be
a suicide note to his friends and family.
‘‘At about 7:05 a.m. the following morning, the [peti-
tioner] telephoned Sowa, who was due to arrive shortly
before 7:30 a.m., and told her not to come to the house
because he was staying home from work that day. Sowa
asked to speak with the victim, but the [petitioner] said
that she was in the shower. The [petitioner] then put
the baby in his car and drove to his parents’ home. As
soon as he arrived, he realized that he had forgotten
the baby’s diaper bag and returned to his house. There,
he packed up the baby’s things, including diapers,
wipes, bottles and formula, and returned to his parents’
home. The [petitioner’s] father met him in the driveway,
where the [petitioner] told his father that he and the
victim had had a fight, that he had pushed her and that
‘she might be dead.’ When the two entered the house
with the baby, the [petitioner’s] father awakened his
wife and told her that the [petitioner] had said that ‘[the
victim] might be dead.’ The [petitioner] went into the
bathroom and began sobbing. The [petitioner’s] father
left his house to check on the victim. After discovering
the victim lying dead on the floor surrounded by blood,
he telephoned the police.
‘‘While the [petitioner] waited at his parents’ home
with his mother, the police surrounded the home. Major
Peter Warren of the state police telephoned the house
and asked to speak with the [petitioner]. The [peti-
tioner] fully understood and complied with Warren’s
instructions to come out of the front door of the house
slowly. Once outside, the [petitioner] followed addi-
tional instructions that he was given, and he was
arrested without further incident.
‘‘Following his arrest, the [petitioner] was brought to
the police station where he gave a statement to state
police Detectives Richard Covello and Brian Van Ness.
During the interview, the [petitioner] made several
incriminating and remorseful statements. He stated that
he did not deserve help because of what he had done
to the victim. Then, slumped over with his head down,
he began crying. Later, in response to a question regard-
ing what in his past he regretted most, the [petitioner]
said, ‘taking [the victim’s] life.’ The [petitioner] admitted
to killing the victim, and forensic examination of the
victim’s fingernail clippings revealed skin scrapings
consistent with the [petitioner’s] DNA. . . .
‘‘At trial, the [petitioner] presented two affirmative
defenses: that he suffered from a mental disease or
defect and that he suffered from an extreme emotional
disturbance. In support of those defenses, he offered
the testimony of Marvin Zelman, a board certified psy-
chiatrist. Zelman testified that, on February 24, 2003,
the [petitioner] went to the police complaining of
depression and paranoia. The police brought the [peti-
tioner] to Waterbury Hospital for an emergency psychi-
atric examination, which resulted in the [petitioner’s]
inpatient treatment for nine days and subsequent outpa-
tient treatment. According to the hospital records, the
[petitioner] reported that, although he had been pre-
scribed psychiatric medications for mental illness, he
had not been taking those medications for the past year.
The hospital diagnosed the [petitioner] as having major
depression, recurrent, with psychosis. While at the hos-
pital, the [petitioner] initially was prescribed Haldol,
an antipsychotic medication, but later was prescribed
Risperdal, another antipsychotic medication effective
in the treatment of both schizophrenia and bipolar dis-
order, and Remeron, an antidepressant. The [petitioner]
was discharged from the hospital on March 4, 2003,
despite his physician’s conclusion that he was, at the
time of discharge, a danger to himself and to others.
Although he was supposed to remain on his psychiatric
medications, in the weeks after his discharge, the [peti-
tioner] gradually reduced and then discontinued taking
his medications. In the days before the victim was killed,
the [petitioner] suffered from paranoid delusions,
believing, in part, that he was being investigated at work
for the crash of a helicopter designed by the company.
The [petitioner] told Zelman that he had killed the victim
because he was angry at her for cheating on him with
her former husband or one of his coworkers. Zelman
testified that, in his opinion, on the date of the killing,
the [petitioner] was ‘psychotic, and [that] the nature of
his illness is schizoaffective disorder, depressive type.’
In his opinion, the strangulation was a product or
byproduct of the [petitioner’s] mental illness. Zelman
explained: ‘[The [petitioner]] was severely disturbed.
He was psychotic, out of touch with reality, incapable
of making judgments, reasonable judgments, and men-
tally ill at the time and this is how he responded to a
provocation.’ In Zelman’s opinion, the events between
the time the [petitioner] was discharged from the hospi-
tal and the night on which the victim was killed repre-
sented a ‘psychiatric perfect storm. . . . You have one
of the sickest people combined with the worst treat-
ment and that’s what really happened. . . . All he
needed was a stressor and multiple stressors occurred.’
Zelman underscored that, in his view, the [petitioner]
was unable to control his conduct.’’ (Footnotes omit-
ted.) State v. Madigosky, 291 Conn. 28, 30–33, 966 A.2d
730 (2009). The petitioner was convicted of murder in
violation of General Statutes § 53a-54a and sentenced
to fifty years incarceration. His conviction was affirmed
by our Supreme Court on direct appeal. Id., 49.
The petitioner filed the operative petition for a writ
of habeas corpus in July, 2013. The petitioner alleged
that his trial counsel, Ralph Crozier, rendered ineffec-
tive assistance because he failed to adequately prepare
Zelman, the petitioner’s expert witness, ‘‘to address the
distinction between the two types of diminished capac-
ity defenses1 so that he could adequately address both
cognitive and volitional arguments.’’ (Emphasis omit-
ted; footnote added.) Following a trial, the court con-
cluded that the petitioner had failed to prove both
deficient performance and prejudice. The court granted
the petitioner’s petition for certification to appeal from
the denial of the habeas petition. This appeal followed.
We begin with the applicable standard of review. ‘‘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 violation of the peti-
tioner’s constitutional right to effective assistance of
counsel is plenary. . . . As enunciated in Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)] . . . [a] claim of ineffective assis-
tance of counsel consists of two components: a perfor-
mance prong and a prejudice prong. To satisfy the
performance prong . . . the petitioner must demon-
strate that his attorney’s representation was not reason-
ably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . To satisfy the prejudice prong,
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.
. . . A court can find against a petitioner, with respect
to a claim of ineffective assistance of counsel, on either
the performance prong or the prejudice prong . . . .’’
(Internal quotation marks omitted.) Browne v. Com-
missioner of Correction, 158 Conn. App. 1, 7–8, 125 A.3d
1014, cert. denied, 318 Conn. 906, 122 A.3d 634 (2015).
The petitioner argues that the court erred in determin-
ing that he failed to satisfy both the performance and
the prejudice prongs of the Strickland test. We con-
clude that an examination of the prejudice prong alone
is sufficient to determine that the court properly denied
the petitioner’s petition. See Nieves v. Commissioner
of Correction, 51 Conn. App. 615, 620, 724 A.2d 508 (‘‘[a]
court need not determine the deficiency of counsel’s
performance if consideration of the prejudice prong
will be dispositive of the ineffectiveness claim’’), cert.
denied, 248 Conn. 905, 731 A.2d 309 (1999).
The court concluded that, even if Crozier’s perfor-
mance had been deficient, the petitioner was not preju-
diced because he ‘‘presented no evidence at the habeas
trial to prove that had . . . Crozier reviewed the cogni-
tive theory with . . . Zelman more thoroughly . . .
Zelman’s trial testimony would have been any different
or that the outcome of the trial would have been differ-
ent.’’ The record supports this conclusion. At the habeas
trial, after Zelman testified that Crozier had not
reviewed the two theories of insanity with him prior to
the petitioner’s criminal trial, the petitioner’s habeas
counsel defined the two theories for Zelman by asking
him the following question: ‘‘[D]id Mr. Crozier discuss
with you that in order to be insane as a matter of law,
a person must lack substantial capacity as a result of
a mental disease or defect either to appreciate the
wrongfulness of his conduct or to control his conduct
according to the requirements of law?’’
Zelman then testified regarding the petitioner’s sanity
at the time of the murder. His testimony was largely
duplicative of the testimony he gave at the petitioner’s
criminal trial.2 At both trials, Zelman testified that the
petitioner was ‘‘out of touch with reality’’ at the time
of the murder. Although Zelman further testified at the
habeas trial that it was ‘‘astounding’’ to him for the
petitioner ‘‘not to qualify as mentally ill,’’ he did not
specify if or whether, in his opinion, the petitioner met
the definition of cognitive insanity or volitional insanity
as set forth by § 53a-13 (a), or both. Zelman also did
not testify as to whether he would have changed his
testimony had Crozier spent more time reviewing the
difference between these two theories with him.
Because there is no evidence that Zelman would have
testified differently had Crozier reviewed the cognitive
theory with him more thoroughly, ‘‘[t]here is no reason-
able probability that the outcome of the proceeding
would have been different’’ if Crozier had spent more
time explaining this difference to Zelman prior to the
petitioner’s trial. See Martin v. Commissioner of Cor-
rection, 155 Conn. App. 223, 232, 108 A.3d 1174, cert.
denied, 316 Conn. 910, 111 A.3d 885 (2015); see also
Taft v. Commissioner of Correction, 159 Conn. App.
537, 554–55, 124 A.3d 1, cert. denied, 320 Conn. 910, 128
A.3d 954 (2015); Nieves v. Commissioner of Correction,
supra, 51 Conn. App. 623–24.
On the basis of the foregoing, we conclude that the
court properly determined that the petitioner had not
met his burden of proving that Crozier rendered ineffec-
tive assistance of counsel for failing to adequately pre-
pare his expert witness because the absence of that
preparation, even if deficient, did not result in prejudice
to the petitioner.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
‘‘The affirmative defense of mental disease or defect, otherwise known
as the insanity defense, is codified in General Statutes § 53a-13. . . . This
defense has both a cognitive and a volitional prong. . . . Under the cognitive
prong [of the insanity defense], a person is considered legally insane if, as
a result of mental disease or defect, he lacks substantial capacity . . . to
appreciate the . . . [wrongfulness] of his conduct. . . . Under the voli-
tional prong, a person also would be considered legally insane if he lacks
substantial capacity . . . to conform his conduct to the requirements of
law.’’ (Citation omitted; internal quotation marks omitted.) State v. Madi-
gosky, supra, 291 Conn. 39.
2
We note that Zelman touched on the cognitive aspect in his testimony
at the criminal trial. For example, in describing how the petitioner had
recounted the victim’s murder, Zelman testified that ‘‘[the petitioner] had
no recognition he did anything wrong and did not realize [the victim] was
dead,’’ and that ‘‘he said he didn’t realize that [the victim] was dead, picked
up the baby and placed the baby in a swing, and then he took one of his
pills.’’ In the circumstances of the case, however, especially in light of the
petitioner’s evident remorse immediately after the murder, it may well have
been appropriate to concentrate on the volitional theory.