Narcisse v. Commissioner of Mental Health & Addiction Services

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MARVIN NARCISSE v. COMMISSIONER OF MENTAL
HEALTH AND ADDICTION SERVICES
(AC 47195)
Moll, Seeley and Lavine, Js.

Syllabus

Pursuant to Duperry v. Solnit (261 Conn. 309), in all cases ‘‘in which a
defendant pleads not guilty by reason of mental disease or defect, and the
state substantially agrees with the defendant’s claim of mental disease or
defect, with the result that the trial essentially is not an adversarial proceed-
ing, the trial court must canvass the defendant to ensure that his plea is
made voluntarily and with a full understating of its consequences.’’

The petitioner, who had previously been found not guilty of certain crimes
by reason of mental disease or defect and committed to the jurisdiction
of the Psychiatric Security Review Board, appealed, on the granting of
certification, from the habeas court’s judgment denying his petition for a writ
of habeas corpus. He claimed, inter alia, that the habeas court improperly
determined that the underlying criminal proceeding was contested and
adversarial in nature and, thus, he was not required to be canvassed pursuant
to Duperry. Held:

The habeas court did not improperly deny the habeas petition with respect
to the petitioner’s claim that his plea of not guilty with the affirmative
defense of mental disease or defect, made pursuant to statute (§ 53a-13 (a)),
was not made knowingly and voluntarily because he was not canvassed
pursuant to Duperry, as the evidence in the record supported the court’s
finding that, because the prosecutor did not substantially agree with the
petitioner’s affirmative defense, the underlying criminal proceedings were
adversarial and contested, and, thus, a canvass pursuant to Duperry was
not required.

The habeas court did not improperly deny the habeas petition with respect
to the petitioner’s claims of ineffective assistance of trial counsel, as the
court correctly determined, on the basis of its assessment of the credibility
of the testimony of trial counsel and the petitioner, that the petitioner
failed to meet his burden of demonstrating that his trial counsel performed
deficiently by failing to advise him properly regarding his affirmative defense
of mental disease or defect, and, because this court determined that the
canvass requirements of Duperry were inapplicable, his claim that trial
counsel performed deficiently by failing to advise him regarding those
requirements necessarily failed.

Argued February 19—officially released July 1, 2025
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Procedural History

Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Middlesex and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and JoAnne Sulik, senior assistant state’s
attorney, for the appellee (respondent).
Opinion

SEELEY, J. On the granting of his petition for certifi-
cation to appeal, the petitioner, Marvin Narcisse, who
had been found not guilty of certain crimes by reason
of mental disease or defect and committed to the juris-
diction of the Psychiatric Security Review Board
(board) for a maximum period of forty years, appeals
from the judgment of the habeas court denying his third
amended petition for a writ of habeas corpus (operative
habeas petition).1 In the operative habeas petition, he
alleged that his plea of not guilty with the affirmative
defense of mental disease or defect, made pursuant to
General Statutes § 53a-13 (a),2 was not made knowingly
1
The operative habeas petition, which was filed on July 20, 2020, and is
titled ‘‘Amended Petition,’’ is actually the petitioner’s third amended
habeas petition.
2
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,
it shall be an affirmative defense that the defendant, at the time the defendant
committed the proscribed act or acts, lacked substantial capacity, as a result
of mental disease or defect, either to appreciate the wrongfulness of his
conduct or to control his conduct within the requirements of the law.’’
Although § 53a-13 (a) was the subject of a technical amendment in 2019;
see Public Acts 2019, No. 19-27, § 1; that amendment has no bearing on the
merits of this appeal. For simplicity, we refer to the current revision of
the statute.
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and voluntarily because he was not canvassed pursuant
to Duperry v. Solnit, 261 Conn. 309, 329, 803 A.2d 287
(2002), and that his criminal trial counsel, Attorney Kim
W. Mendola (trial counsel), had provided ineffective
assistance. On appeal, the petitioner claims that the
habeas court improperly determined that (1) the under-
lying criminal proceeding was contested and adversar-
ial in nature and, thus, that the petitioner was not
required to be canvassed pursuant to Duperry, and (2)
his trial counsel did not render deficient performance
by failing to advise the petitioner regarding the canvass
requirements of Duperry.3 We disagree with both claims
and affirm the judgment of the habeas court.
We first set forth the facts underlying the criminal
charges that were brought against the petitioner, as
found by the court, Devlin, J. ‘‘On the afternoon of
December 22, 2011, [the victim, Margery Meketa] exited
a store located near the intersection of William Street
and Roosevelt Street in Bridgeport . . . . At that time
3
We note that, in his operative habeas petition, the petitioner alleges that
his trial counsel was ineffective on the basis of six grounds, namely, that
trial counsel (1) ‘‘failed to advise him of and [to] explore options other than
[his] plea’’ with the affirmative defense of mental disease or defect, (2)
‘‘pressured [him] to take the plea rather than explore other options such
as a plea agreement,’’ (3) ‘‘improperly advised him that he would be commit-
ted [to] the [jurisdiction of the board] for . . . a short period of time,’’ (4)
‘‘failed to advise him regarding the Duperry canvass requirements,’’ (5)
‘‘failed to ensure that [he] was properly canvassed,’’ and (6) ‘‘failed to advise
him that he could withdraw his plea or appeal the validity of his plea based
on the inadequacy of the canvass.’’ (Emphasis omitted.) On appeal, the petitioner
challenges only the court’s determinations that trial counsel was not ineffec-
tive in failing to advise him regarding his affirmative defense of mental
disease or defect and concerning the canvass requirements of Duperry. We,
therefore, limit our analysis to those grounds and deem any claim relating
to the other grounds raised in the operative habeas petition abandoned. See
Walker v. Commissioner of Correction, 176 Conn. App. 843, 856, 171 A.3d
525 (2017) (when claim raised at trial is not adequately briefed on appeal,
claim is deemed abandoned); Merle S. v. Commissioner of Correction, 167
Conn. App. 585, 588 n.4, 143 A.3d 1183 (2016) (claims alleged in habeas
petition that were denied by habeas court but not pursued by petitioner on
appeal were deemed abandoned).
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. . . Meketa was over sixty years of age and in fact was
approximately seventy-seven years old. As she walked
from the store on the sidewalk, the [petitioner] ran
toward her from the rear. As the [petitioner]
approached . . . Meketa, he increased his speed and
tackled her like a football player.
‘‘[Meketa] fell forward and with great force hit her
head on a concrete sidewalk. The [petitioner] then pro-
ceeded to stab [her] repeatedly in the face with a broken
off stem of a wine glass. He also stomped [on] and
kicked her. Alfredo Serrano observed the attack and
came to . . . Meketa’s aid. He . . . fought with the
[petitioner] to get him away from . . . Meketa. During
their tussle, the [petitioner] was able to break loose
from Serrano and returned to his attack on . . . Mek-
eta, again stomping [on] and kicking her. He also tried
to lift her shirt to get at her bare skin with the glass stem.
‘‘Eventually, a third person, Dennis Shaw, enter[ed]
the fracas to assist Serrano, and the two were ultimately
able to pull the [petitioner] away. The police arrived
on the scene soon after. Following the break-up of the
attack, but while all parties were still on the scene, a
witness video recorded what was happening. [The]
video, which was played [to the court], shows . . .
Meketa motionless on the ground with gruesome injur-
ies to her head and substantial bleeding. The video also
shows the [petitioner] seated on the ground with his
back against a fence. On [that] December afternoon,
he [was] wearing only a T-shirt, socks, no shoes, [and]
boxer shorts with no trousers or pants.
‘‘During [the] incident, the [petitioner] made no effort
to steal . . . Meketa’s purse or any of her other prop-
erty. He was described by witnesses as acting deranged
and in a rage directed at . . . Meketa. There’s no evi-
dence that these people knew each other or had ever
had any contact whatsoever before this day.’’4
4
The court also found that, ‘‘[f]ollowing the assault . . . Meketa spent
several months in the hospital. Initially, she was not able to talk and could
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Following the assault, the petitioner was charged
with attempt to commit murder in violation of General
Statutes §§ 53a-49 and 53a-54a, assault in the first
degree in violation of General Statutes § 53a-59 (a) (1),
and assault of an elderly person in the first degree in
violation of General Statutes § 53a-59a (a). The peti-
tioner elected to be tried to the court, which canvassed
him regarding his waiver of his right to a jury trial. A
trial to the court, Devlin, J., took place on March 12
and April 9, 2013, after which the court found that the
state had proven the elements of the charges beyond
a reasonable doubt. The court, however, also found that
the petitioner had met his burden of establishing his
affirmative defense that, as a result of mental disease
or defect, he ‘‘lacked substantial capacity . . . to
appreciate the wrongfulness of his conduct or to control
his conduct within the requirements of the law.’’ Gen-
eral Statutes § 53a-13 (a). Following the submission of
a report to the court prepared by the respondent, the
Commissioner of Mental Health and Addiction Services,
concerning the petitioner’s mental condition and a hear-
ing thereon, the court found that the petitioner ‘‘consti-
tute[d] a danger to himself and to others’’ and ordered
that he ‘‘be committed to the jurisdiction of the [board]
and . . . be confined in a hospital for psychiatric disa-
bilities for a maximum of forty years.’’
The petitioner commenced this habeas action in May,
2016. In his operative habeas petition, he alleged two
counts: in count one, he alleged that the trial court
improperly failed to canvass him in accordance with
the requirements of Duperry; and, in count two, he
alleged that his trial counsel provided ineffective assis-
tance. See footnote 3 of this opinion. A habeas trial took
place on February 6, 2023. The petitioner presented as
not breathe on her own as a result of the injuries sustained in the assault.
She is now in a wheelchair being unable to walk and she has memory loss
. . . and other medical problems.’’
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witnesses himself and his trial counsel, and offered
several exhibits into evidence, which were admitted.
The respondent offered no witnesses or exhibits. Fol-
lowing the evidentiary hearing, the habeas court ren-
dered judgment denying the operative habeas petition.
Thereafter, the habeas court granted the petition for
certification to appeal, and this appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
Before turning to the merits of the petitioner’s claims
on appeal, we set forth our standard of review governing
habeas corpus appeals. ‘‘The habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . Accordingly, [t]he habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony. . . . The application of the habeas
court’s factual findings to the pertinent legal standard,
however, presents a mixed question of law and fact,
which is subject to plenary review.’’ (Internal quotation
marks omitted.) Canady v. Commissioner of Correc-
tion, 231 Conn. App. 603, 610, 333 A.3d 797, cert. denied,
352 Conn. 901, 334 A.3d 1006 (2025).
I
The petitioner’s first claim is that the habeas court
improperly determined that the underlying criminal pro-
ceeding was contested and adversarial in nature and,
thus, that the petitioner was not required to be can-
vassed pursuant to Duperry. We are not persuaded.
Because the petitioner’s first claim is predicated on
Duperry v. Solnit, supra, 261 Conn. 309, we first provide
a brief discussion of that case and other relevant case
law. In Duperry, the petitioner, who had been charged
with arson in the first degree and the manufacture of
bombs in connection with the explosion of a pipe bomb
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at a psychiatric treatment facility; id., 312–13; was found
not guilty of those crimes by reason of mental disease
or defect and was committed to the jurisdiction of the
board ‘‘to be confined in a hospital for psychiatric disa-
bilities for a maximum term of twenty-five years.’’ Id.,
315. The petitioner in Duperry subsequently filed a peti-
tion for a writ of habeas corpus alleging, inter alia, that
‘‘his plea of not guilty by reason of mental disease or
defect violated his due process rights under both the
federal and state constitutions because he was not made
aware of and did not fully understand the consequences
of his plea . . . .’’ Id. The habeas court agreed with that
claim, concluding, inter alia, that ‘‘ ‘[t]he requirements
governing the taking of a guilty plea also apply to the
acceptance of a plea [of] not guilty by reason of mental
disease or defect’ ’’; id., 315–16; and that ‘‘the record
was devoid of any indication that the trial court had
canvassed the petitioner in a manner analogous to the
requirements of Practice Book § 39-19, which pre-
scribes the required canvass of a defendant who pleads
guilty . . . .’’ (Footnote omitted.) Id., 316. The habeas
court, therefore, concluded that the petitioner, at the
time of his plea, did not ‘‘understand the consequences
of pleading not guilty by reason of mental disease or
defect, thereby rendering his plea involuntary.’’ Id.

On appeal in Duperry, our Supreme Court deter-
mined that the habeas court, ‘‘by concluding that a
criminal defendant who pleads not guilty with the affir-
mative defense of mental disease or defect must be
canvassed as though he is pleading guilty to ensure that
his plea is made knowingly and voluntarily’’; (footnote
omitted) id., 311; ‘‘improperly established a new consti-
tutional rule in a collateral proceeding in contravention
of the principle announced in Teague v. Lane, 489 U.S.
288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)’’; Duperry
v. Solnit, supra, 261 Conn. 311; in which the United
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States Supreme Court held that, ‘‘in general, new consti-
tutional rules should not be declared or applied in collat-
eral proceedings, such as habeas corpus review.’’ Id.,
318. Nevertheless, our Supreme Court exercised its
supervisory authority over the administration of justice
and ruled that, ‘‘in all future cases in which a defendant
pleads not guilty by reason of mental disease or defect,
and the state substantially agrees with the defendant’s
claim of mental disease or defect, with the result that
the trial essentially is not an adversarial proceeding, the
trial court must canvass the defendant to ensure that his
plea is made voluntarily and with a full understanding
of its consequences.’’ Id., 329. The court in Duperry did
not define what it means to ‘‘substantially [agree] with
a defendant’s claim of mental disease or defect . . . .’’
Id. Notably, after the petitioner in Duperry ‘‘pleaded
not guilty by reason of mental disease or defect and
opted for a court trial . . . [the trial] began immedi-
ately. In accordance with their prior discussions, the
parties presented their respective cases without opposi-
tion. First, the parties presented evidence with respect
to the petitioner’s mental state, and, second, the state
introduced evidence regarding the underlying charges.
The entire proceeding was completed in less than two
hours, and the trial court immediately rendered its judg-
ment . . . .’’ Id., 314.
Just over two years after the decision in Duperry,
our Supreme Court decided State v. Ouellette, 271 Conn.
740, 859 A.2d 907 (2004). In Ouellette, following a trial
to a three judge court, the trial court rejected the defen-
dant’s affirmative defense of mental disease or defect
and found him guilty of murder. Id., 742–43. On appeal,
the defendant, relying on Duperry, claimed, inter alia,
that ‘‘his constitutional right to due process was violated
by virtue of the trial court’s failure to canvass him in
connection with his plea of not guilty by reason of
mental disease or defect to ensure that his plea was
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knowing, voluntary and intelligent . . . .’’ Id., 743. Our
Supreme Court rejected this claim, concluding that ‘‘the
defendant’s due process rights were not implicated by
virtue of the trial court’s failure to canvass him regard-
ing his plea of not guilty by reason of mental disease
or defect.’’ Id., 769. In reaching that conclusion, the
court first noted that, in adopting a rule in Duperry
‘‘requiring trial courts to canvass defendants who elect
to plead not guilty by reason of mental disease or
defect,’’ it had limited the rule in two important respects.
Id., 767. ‘‘First, the rule is prospective in nature, and
second, it applies to cases in which the state substan-
tially agrees with the defendant’s claim of mental dis-
ease or defect, with the result that the trial essentially
is not an adversarial proceeding . . . .’’ (Internal quota-
tion marks omitted.) Id.
The court explained further: ‘‘As we observed in Dup-
erry . . . and as courts in a number of other jurisdic-
tions also have recognized; [see] e.g., Miller v. Angliker,
848 F.2d 1312, 1320 (2d Cir.), cert. denied, 488 U.S. 890,
109 S. Ct. 224, 102 L. Ed. 2d 214 (1988); United States
v. Brown, 428 F.2d 1100, 1102–1103 (D.C. Cir. 1970);
there are certain practical similarities between guilty
pleas and pleas of not guilty by reason of mental disease
or defect or by reason of insanity. We know of no court,
however, that has required, as a matter of constitu-
tional law, a . . . canvass [pursuant to Boykin v. Ala-
bama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969)] of a defendant who pleads not guilty by reason
of mental disease or defect or by reason of insanity.
Moreover, those courts that have required such a can-
vass have done so not as a matter of constitutional
mandate but, rather, on the basis of prudential consider-
ations; [see] e.g., United States v. Brown, supra, 1103–
1104; State v. Shegrud, 131 Wis. 2d 133, 138, 389 N.W.2d
7 (1986), cert. denied, 479 U.S. 1037, 107 S. Ct. 891, 93
L. Ed. 2d 843 (1987); see People v. Vanley, 41 Cal. App.
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3d 846, 856, 116 Cal. Rptr. 446 (1974); Legrand v. United
States, 570 A.2d 786, 792–94 (D.C. App. 1990); and even
then, only in circumstances in which the state has not
opposed the defendant’s claim or in which the facts are
not otherwise in dispute. See, e.g., United States v.
Brown, supra, 1103; People v. Vanley, supra, 853;
Legrand v. United States, supra, 788; State v. Shegrud,
supra, 135. Indeed, in truly contested cases, we reason-
ably may presume that, in light of the adversarial nature
of the proceeding, defense counsel will be particularly
diligent in advising the defendant of the effect that a
claim of mental disease or defect is likely to have on
the defendant’s rights. In the absence of any precedent
or other authority to indicate that a court is constitution-
ally required to canvass a defendant who pleads not
guilty by reason of mental disease or defect, and in
view of the fact that the state vigorously contested the
defense raised by the defendant, we conclude that the
defendant’s due process rights were not implicated by
virtue of the trial court’s failure to canvass him regard-
ing his plea of not guilty by reason of mental disease
or defect.’’ (Citation omitted; emphasis in original; foot-
note omitted.) State v. Ouellette, supra, 271 Conn. 768–
69.

With that background in mind, we set forth the follow-
ing additional facts, which are relevant to our resolution
of this claim. The petitioner’s criminal trial commenced
on March 12, 2013, with the state presenting its case
concerning the charged offenses. In particular, the state
presented testimony from the two witnesses to the
assault on the victim—Serrano and Shaw—both of
whom described in detail the circumstances of the
attack, with Serrano stating that he thought that the
petitioner was ‘‘high on some drugs,’’ and Shaw testi-
fying that he had told the police that he believed that the
petitioner was ‘‘crazy.’’ The state presented testimony
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from two other witnesses, submitted exhibits into evi-
dence, and rested its case-in-chief that day. The peti-
tioner did not challenge any of the state’s evidence
concerning the charged offenses.

The trial resumed on April 9, 2013, when the peti-
tioner began presenting evidence in support of his affir-
mative defense of mental disease or defect. The peti-
tioner’s first witness was Alexander Westphal, a
psychiatrist and fellow in the Department of Law and
Psychiatry at Yale School of Medicine who had exam-
ined the petitioner and made findings concerning his
mental health in a written report that was submitted into
evidence. Westphal testified regarding the petitioner’s
psychiatric history, which included, inter alia, a history
of having visual and auditory hallucinations; a family
history of bipolar disorder, depression, and anxiety; and
a history of ‘‘extensive [phencyclidine (PCP)] use,’’ for
which he was hospitalized. Westphal testified that the
petitioner ‘‘has a very substantial history of substance
abuse. He’s used a variety of substances, beginning with
marijuana, but later, as he got older, used most, I think,
importantly PCP repeatedly.’’ When asked whether ‘‘the
usage of the drugs [was] the cause of [the petitioner’s]
illness,’’ Westphal responded, ‘‘[n]o,’’ but that ‘‘it could
have contributed . . . .’’ Westphal testified that, in his
opinion and to a reasonable degree of medical certainty,
the petitioner suffers from a mental disease, namely,
‘‘schizoaffective disorder,’’ which ‘‘prevented him from
understanding the wrongfulness of his actions . . . .’’
The prosecutor cross-examined Westphal with respect
to his diagnosis of the petitioner, asking whether, inter
alia, there is a violent aspect to patients with schizoaf-
fective disorder, to which Westphal responded that
patients diagnosed with that disorder typically do not
have violent symptoms. Afterward, Westphal confirmed
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that the ingestion of PCP could cause an otherwise
nonviolent person to become violent.5
On cross-examination, the prosecutor also ques-
tioned Westphal regarding whether, in his thorough
investigation of the petitioner’s background, he ever
‘‘notice[d] any . . . incidents of violent contact or . . .
unprovoked attacks on other people [aside from the
event that formed the basis for the charges in the pres-
ent case],’’ to which Westphal responded in the nega-
tive. The prosecutor also questioned Westphal regard-
ing whether there was anything in the petitioner’s
‘‘environment that may have contributed to [his] sudden
snap’’ from a person experiencing ‘‘baseline fluctuation
of psychiatric symptoms to one that he’s never had
before, where he’s attacking people.’’ Additionally, the
prosecutor questioned Westphal concerning the peti-
tioner’s inability to recall the attack on the victim and
whether he thinks it is possible for a person ‘‘to have
5
Specifically, the following colloquy transpired:
‘‘[The Prosecutor]: All right. And, would you say also that if someone was
taking certain drugs or medications—like, for instance, PCP—would that
tend to have an influence on a person who had this kind of disorder?
‘‘[Defense Counsel]: Your Honor, objection. Foundation.
‘‘The Court: No, the doctor testified that [the petitioner] said he took PCP
a lot. No, that’s overruled.
‘‘[The Prosecutor]: Would that have—do you think that would have an
impact on symptoms that somebody would . . . experience?
‘‘[Westphal]: Would the ingestion of PCP have impact?
‘‘[The Prosecutor]: Yes.
‘‘[Westphal]: Yes.
‘‘[The Prosecutor]: Could it make it—if somebody was not violent before,
could it make it so that they were violent after taking that?
‘‘[Westphal]: Yes.
‘‘[The Prosecutor]: The effect that it might have, would it be . . . only
concurrent with the administration of the . . . drug or would it have a
residual effect as well?
‘‘[Westphal]: The aspect of PCP, which had been associated with violence,
is . . . related to the acute phase of intoxication.
‘‘[The Prosecutor]: And is there also some impact that, aside from the
acute phase, it could have some residual effect as well?
‘‘[Westphal]: Yeah. It affects cognition and it affects mood.’’
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[a] psychiatric illness and not [be] malingering . . . but
actually experiencing [the illness] but still be able to
lie,’’ to which Westphal replied, ‘‘[y]es, absolutely.’’ On
redirect, Westphal responded, ‘‘[n]o,’’ when asked
whether, in his review of the records of the Department
of Correction following the assault, he saw ‘‘any indica-
tion of a positive blood test for any other substance like
the PCP.’’ The prosecutor also cross-examined Madelon
Baranowski, a psychologist and associate professor in
the Department of Law and Psychiatry at Yale School
of Medicine who testified for the defense and also had
evaluated the petitioner, and asked her several ques-
tions concerning the petitioner’s memory.
During closing remarks, the prosecutor first stated
his position that the testimony of the eyewitnesses
established beyond a reasonable doubt that the peti-
tioner committed the charged offenses. With respect to
the issue of the petitioner’s affirmative defense of men-
tal disease or defect, the prosecutor acknowledged that
he was not able to suggest an alternative motive for
the assault and that there was no question that the
petitioner suffers from a mental illness. He argued, how-
ever, that, when ‘‘assessing whether . . . the elements
of the defense have been met by a preponderance [of
the evidence],’’ the question before the court was
whether the petitioner’s assault against the victim
occurred as part of his mental illness or whether it was
influenced by the petitioner’s use of drugs, which would
have precluded the petitioner’s affirmative defense pur-
suant to § 53a-13 (b).6 (Emphasis added.) Ultimately,
6
General Statutes § 53a-13 (b) (1) provides: ‘‘It shall not be a defense
under this section if such mental disease or defect was proximately caused
by the voluntary ingestion, inhalation or injection of intoxicating liquor or
any drug or substance, or any combination thereof, unless such drug was
prescribed for the defendant by a prescribing practitioner, as defined in
section 20-571, and was used in accordance with the directions of such
prescription.’’
Although § 53a-13 (b) has been the subject of minor amendments after
the events in the present case; see Public Acts 2023, No. 23-19, § 16; Public
Acts 2021, No. 21-192, § 12; Public Acts 2020, No. 20-4, § 11; Public Acts
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the prosecutor stated that this case presents a ‘‘fifty-
fifty situation,’’ in that there was no doubt that the
petitioner suffered from a mental illness but that ques-
tions remained as to what had caused the petitioner to
become violent and attack the victim.7
2019, No. 19-27, § 1; those amendments have no bearing on the merits of
this appeal. For simplicity, we refer to the current revision of the statute.
7
In particular, the prosecutor stated: ‘‘[F]irst of all . . . the [petitioner]
. . . [has] a psychiatric record going . . . back to when he was eight years
old. He has a criminal record spanning a long period of time. . . . Westphal
seems to have conducted a serious study of . . . both. What is absent is
any violence. He gets . . . irritable, he . . . seems to make people uncom-
fortable, but he hasn’t committed any act of . . . violence. So, the question
becomes . . . you have this long-standing mental illness, why today . . .
what has happened? Is there something in the environment that has caused
this situation to escalate or is it just a random, psychiatric event that causes
him suddenly, after all this time, to suddenly go out and lash out in the
manner that he did, at some person . . . that he’s not even involved with,
just a random person on the street.
‘‘And . . . there are other issues. He uses drugs. It’s reported here in the
report that he has used just about every kind of drug that could exacerbate
his condition. He uses PCP with and without marijuana. He uses PCP with
and without ketamine. He . . . smokes that drug. He’s . . . had violations
of his parole for that. He’s tested positive for PCP.
‘‘Back in 2011 [at the time of the assault], they didn’t—unfortunately,
there is none around the time when this event occurred, but he was using
. . . according to the report, he reported using this K2 and Spice, which
are . . . chemicals similar to THC, one of the principal psychoactive sub-
stances in marijuana, and they are synthesized without any oversight—
mostly in China . . . . However . . . they are different from the normal
marijuana in that they confer a greater risk of psychosis, particularly in
people already vulnerable to psychosis.
‘‘So, on the one hand . . . the conclusions and the testimony give us a
person with a baseline of a person with a mental illness, there’s . . . no
way to contest that, but we find him engaging in conduct for which there’s
no rational motive, which [he] does report no memory for. And . . . there
is no medical suggestion of . . . anything, other than speculation, as to
what could have happened to change that behavior on this day from what
he’s been doing for all this time, to suddenly becoming homicidal, basically.
‘‘And the only thing we have on the other hand is his use of the drugs.
This is something—it’s all over the doctor’s report. All kinds of drugs, which
could exacerbate symptoms. So, we don’t know if he did or he didn’t. We
don’t know that he didn’t [take drugs].
‘‘And so, I think the position that I would take is . . . that we’re at this
fifty-fifty situation, which is not . . . a situation [that] is contemplated by
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At the habeas trial, the petitioner’s trial counsel testi-
fied at length regarding the circumstances surrounding
the petitioner’s underlying criminal trial. She testified
that, at some point prior to trial, there were discussions
about a not guilty plea with the affirmative defense of
mental disease or defect but that ‘‘[t]he state refused
to agree to’’ the affirmative defense of mental disease
or defect, as ‘‘the state did not agree that . . . [it] was
an appropriate disposition.’’8 Trial counsel testified that,
during those pretrial discussions, ‘‘Judge Devlin . . .
felt that . . . although the state didn’t have any evi-
dence, he felt there was a drug ingestion component
to the case, and he said [that the parties could] certainly
take a go at it at trial, but there were no guarantees at
all.’’ Trial counsel explained that the state’s reasoning
for opposing such a defense was because ‘‘[t]he victim’s
family was very much against it,’’ and because the state
‘‘simply felt it was far too serious [of a case] and thought
there was a drug component to it . . . .’’ Trial counsel
testified that the state did not dispute that the petitioner
had a mental illness but was ‘‘adamantly opposed to
the use of the [not guilty by reason of mental disease
or defect] defense because . . . there was some indica-
tion that [the petitioner] has used PCP and actually was
the statute. . . . [W]e know there was a spontaneous shift in his mental
condition. . . . [W]as it spontaneous in that . . . it just occurred as part
of the course of his illness or was it influenced by what we know to be
something that he does, which is that he uses these types of drugs.’’
The prosecutor then referred to the language in § 53a-13 (b) (1), which
provides that ‘‘[i]t shall not be a defense under this section if such mental
disease or defect was proximately caused by the voluntary ingestion . . .
of intoxicating liquor or any drug . . . unless such drug was prescribed,’’
and stated that it was not the state’s burden to prove that the petitioner
was using drugs and that the defense had not established that the assault
was not prompted by the petitioner’s use of drugs. Immediately following
those remarks, the court noted that, two months prior to the assault, the
petitioner had tested negative for drug use but that no further testing had
been conducted thereafter, especially when the petitioner started behaving
strangely sometime in November, 2011.
8
We note that the prosecutor at the petitioner’s criminal trial, John Smriga,
was not called to testify at the petitioner’s habeas trial.
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a known PCP user in the neighborhood and . . . that
contributed [to the cause for the assault] and not a
mental illness,’’ even though there was ‘‘no evidence’’
of the petitioner having used PCP on the day of the
attack.9 Trial counsel repeatedly testified that the state
‘‘strongly’’ contested the petitioner’s affirmative
defense and that the petitioner’s ‘‘drug issue’’ was the
primary issue in dispute. When asked whether she was
familiar with Duperry and had discussed it with the
petitioner, trial counsel responded: ‘‘It didn’t need to
be because it wasn’t an agreed upon disposition. You
only need to do that canvass if you have an agreed upon
disposition, and we did not have that. This was an
opposed disposition.’’ She also recalled having been
contacted by Attorney Monte Radler, a public defender,
after the criminal trial and ‘‘being pressured’’ to say
that the petitioner’s case was an agreed upon disposi-
tion. She testified that she told Radler that she ‘‘could
not be a part of saying something that was not true.
[She] would not perpetrate a fraud upon the court. . . .
[She] had [that] conversation with many other people,
including Judge Devlin. . . . [She] was . . . asked
many times if this was an agreed upon disposition, and
[she], quite emphatically, had told everybody the truth,
which [is] that it was not an agreed upon disposition.’’
The petitioner also testified at his habeas trial. On
cross-examination, he acknowledged that he had writ-
ten a letter to his trial counsel asking her to say that
the trial was not contested. On redirect, he testified
that he never told his trial counsel to lie for him.
The habeas court in the present case made the follow-
ing findings with respect to the petitioner’s Duperry
claim. After evaluating ‘‘the tenor and tone of the under-
lying proceeding to determine, after a scrupulous
9
Trial counsel stated that, following the assault, the police did not test
the petitioner for drugs or find any drugs on his person or following a search
of his residence.
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review of the record, whether the court trial was essen-
tially nonadversarial,’’ the court found that ‘‘neither the
conclusions nor the rationales of Duperry and Ouellette
support the petitioner’s claim that the trial court’s fail-
ure to canvass the [petitioner] with respect to his pur-
suit of the affirmative defense of not guilty by reason
of [mental disease or defect] implicated his right to
due process, as the underlying court trial was indeed
adversarial and contested in nature, in that the prose-
cuting authority, although certainly fighting the weight
of the evidence, did not agree, substantially or other-
wise, with the petitioner’s affirmative defense or a . . .
commitment [to the board]. A lengthy review of the
entirety of the evidence presented at the habeas trial,
including the testimony of the witnesses and exhibits,
[which include] the underlying trial transcripts, compel
this court’s finding.

‘‘Chief among the dispositive testimony on this issue
was the unwavering testimony of [trial counsel] that,
despite her attempts to secure the agreement of the
prosecuting attorney to an ‘uncontested’ [not guilty by
reason of mental disease or defect] trial, the prosecuting
attorney . . . ‘refused to agree’ as he was of the opin-
ion that [a finding of not guilty by reason of mental
disease or defect] and the accompanying disposition of
commitment was not appropriate. It was his opinion,
and that of the family of the victim, that the case was
‘too serious’ for [a not guilty by reason of mental disease
or defect] disposition, despite the petitioner’s clear and
severe mental illness. The court credits [trial] counsel’s
testimony that [the prosecutor] was ‘adamantly
opposed to [a not guilty by reason of mental disease
or defect] finding largely based on the petitioner’s use
of PCP, despite the lack of evidence of the petitioner’s
PCP use at the time of the attack on the victim. This
court does not interpret [an exhibit submitted by the
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petitioner]10 in the same manner as the petitioner in
that the court does not find that it constitutes evidence
of an uncontested [not guilty by reason of mental dis-
ease or defect] trial. The trial court, Devlin, J., also
stated that the potential drug ingestion component to
the case made it clear to him that there was ‘no guaran-
tee’ of [a not guilty by reason of mental disease or
defect] verdict. This being the case, there was no neces-
sity that the court canvass the petitioner in the manner
asserted in the operative [habeas] petition.’’ (Footnote
added.)
The petitioner’s contention in this appeal that the
underlying criminal proceeding was not contested and
adversarial in nature is based on his assertions that the
state ‘‘substantially agreed’’ with his affirmative defense
of mental disease or defect and that ‘‘any ‘contest’ was
illusory.’’ The petitioner notes that the defense did not
challenge any of the evidence presented by the state
relating to the charged offenses and that the state did
10
The exhibit consists in part of an email communication between the
petitioner’s trial counsel and Radler, in which trial counsel stated, in part,
that the prosecutor ‘‘had told [the victim’s family] that [a verdict of not
guilty by reason of mental disease or defect] would be the result. There was
literally no outrage on their part.’’ The exhibit was marked for identification
purposes only and used at trial to refresh trial counsel’s recollection as to
whether she ever told Radler that the victim’s family was not surprised
about the outcome of the criminal trial. The court stated that it would
consider the email in the exhibit for impeachment purposes only, as trial
counsel testified that she could not recall making that statement to Radler.
On appeal, the petitioner argues that the email constituted ‘‘clear evidence
that trial counsel was aware that the state perceived the [not guilty by
reason of mental disease or defect] verdict, prior to the verdict, as a foregone
conclusion.’’ The state correctly points out, however, that the email was
not admitted for substantive purposes, which precludes our consideration
of it in this appeal. See Sharp Electronics Corp. v. Solaire Development,
LLC, 156 Conn. App. 17, 31 n.8, 111 A.3d 533 (2015) (‘‘Documents marked
at trial only for identification and not entered as full exhibits . . . are not
substantive evidence for consideration by the trier of fact. See State v.
Kamel, 115 Conn. App. 338, 345, 972 A.2d 780 (2009); see also C. Tait & E.
Prescott, Connecticut Evidence (5th Ed. 2014) § 1.29.3, p. 93 (‘[e]xhibits for
identification are not in evidence’).’’).
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not contest that the petitioner was mentally ill. He fur-
ther asserts that ‘‘[t]he state did not challenge the con-
clusions of the petitioner’s experts . . . [or] offer its
own expert to rebut such conclusions. The state did
not even have the petitioner examined prior to trial to
rebut the evidence to be presented by the petitioner.
. . . In effect, everything aside from the issue of sanity
was stipulated to [as was the case in Duperry]. See
Duperry v. Solnit, supra, 261 Conn. 323 . . . . [T]he
state cursorily argued that the [petitioner] had a history
of drug use. . . . Indeed, aside from the inherent bur-
den of proof that a defendant must establish, the sole
issue in dispute was voluntary intoxication, such that
would negate the [affirmative] defense. . . . However,
there was no evidence that the petitioner had been
voluntarily intoxicated at the time of the offense. . . .
There was no evidence of drug use.11 . . . The state
acknowledged that the petitioner was mentally ill, but
merely speculated during oral argument that drug use
may have precipitated the violent outburst . . . .’’
(Citations omitted; footnote added.) We disagree with
the petitioner’s characterization of the state’s position
at the criminal trial.
The question before us of whether the habeas court
properly determined that the underlying criminal pro-
ceeding was contested and adversarial in nature such
that the trial court was not required to canvass the
petitioner pursuant to Duperry involves a mixed ques-
tion of law and fact, over which we exercise plenary
review; see Canady v. Commissioner of Correction,
supra, 231 Conn. App. 610; as we must determine
whether the habeas court properly applied the legal
requirements set forth in Duperry to its factual finding
concerning the nature of the criminal trial. On the basis
11
We note that, at the criminal trial, Judge Devlin specifically stated that
the evidence of the petitioner’s drug use consisted of the petitioner’s state-
ments to Westphal regarding his long history of using drugs.
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of our thorough review of the record, including the
transcripts of the petitioner’s criminal trial, we con-
clude that the evidence in the record supports the
habeas court’s finding that the proceeding was advers-
arial and contested, and, thus, we agree with the habeas
court’s legal determination that the petitioner’s criminal
trial was not the type of proceeding for which a canvass
pursuant to Duperry was required.
At the outset, the record indicates that the habeas
court found that the criminal proceeding was contested
and adversarial on the basis of its assessment of the
credibility of trial counsel’s testimony at the habeas
trial. Specifically, the court found trial counsel’s testi-
mony to be unwavering with respect to the prosecutor’s
refusal to agree to an uncontested trial, and it credited
trial counsel’s ‘‘testimony that [the prosecutor] was
‘adamantly opposed’ to [a not guilty by reason of mental
disease or defect] finding largely based on the petition-
er’s use of PCP . . . .’’ The habeas court also noted
that, in her testimony at the habeas trial, trial counsel
remarked that Judge Devlin had told the parties that
there were no guarantees as to a verdict of not guilty
by reason of mental disease or defect in light of the
‘‘drug ingestion component to the case . . . .’’ On the
basis of those findings, the habeas court determined
that the prosecuting authority ‘‘did not agree, substan-
tially or otherwise, with the petitioner’s affirmative
defense,’’ that ‘‘there was no necessity that the court
canvass the petitioner’’ pursuant to Duperry, and, thus,
that the petitioner had failed to carry his burden as to
count one of the operative habeas petition.
‘‘In a habeas trial, the court is the trier of fact and,
thus, is the sole arbiter of the credibility of witnesses
and the weight to be given to their testimony . . . . It
is simply not the role of this court on appeal to second-
guess credibility determinations made by the habeas
court.’’ (Internal quotation marks omitted.) Balbuena
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v. Commissioner of Correction, 231 Conn. App. 289,
327, 332 A.3d 1008, cert. denied, 352 Conn. 905,
A.3d (2025). ‘‘[T]his court does not retry the case
or evaluate the credibility of the witnesses. . . .
Rather, we must defer to the [habeas] [court’s] assess-
ment of the credibility of the witnesses based on its
firsthand observation of their conduct, demeanor and
attitude.’’ (Internal quotation marks omitted.) Brown v.
Commissioner of Correction, 230 Conn. App. 384, 399,
330 A.3d 134, cert. denied, 351 Conn. 921, 333 A.3d 103
(2025); see also Lopez v. Commissioner of Correction,
232 Conn. App. 825, 828, A.3d (2025) (‘‘ ‘[a] pure
credibility determination made by a habeas court is
unassailable’ ’’ (emphasis in original)). In the present
case, the habeas court was free to find, on the basis of
trial counsel’s testimony, that the state had opposed or
contested the petitioner’s affirmative defense of mental
disease or defect, despite the state’s agreement that the
petitioner suffered from a mental illness, and, because
that finding was based on a credibility determination,
it is unassailable.
Primarily on the basis of that factual finding, the court
made a legal determination that the parties did not
substantially agree on a not guilty by reason of mental
disease or defect disposition for purposes of Duperry.
The petitioner contends that the court improperly relied
exclusively on trial counsel’s subjective perception of
whether a substantial agreement existed, thereby ignor-
ing ‘‘the prophylactic purpose of Duperry,’’ and that ‘‘[a]
review of the record [of the criminal trial] demonstrates
that this was not a truly contested case’’ and that the
parties ‘‘substantially agreed’’ to the disposition. These
contentions simply are not supported by the record,
and, for the following reasons, we reject them.
Our resolution of the petitioner’s claim rests on a
construction of the language in Duperry requiring a can-
vass ‘‘in all future cases in which . . . the state sub-
stantially agrees with the defendant’s claim of mental
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disease or defect . . . .’’ (Emphasis added.) Duperry
v. Solnit, supra, 261 Conn. 329. As we have stated,
the court in Duperry did not define what it means to
substantially agree. ‘‘[A]ppellate courts consistently
have defined ‘substantially’ to mean to a considerable
extent or degree.’’ (Internal quotation marks omitted.)
State v. King, 346 Conn. 238, 256, 288 A.3d 995 (2023);
see also Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2003) p. 1245. The word ‘‘agree’’ is defined in part
as ‘‘to concur in (as an opinion) . . . to consent to as
a course of action . . . to accept or concede something
. . . .’’ Merriam-Webster’s Collegiate Dictionary, supra,
p. 26. It follows, therefore, that, for the state to have
substantially agreed with the petitioner’s affirmative
defense of mental disease or defect, it had to have
consented to, accepted or conceded the affirmative
defense to a considerable degree or extent. Although
the petitioner is correct that ‘‘substantial agreement’’
does not mean that the state had to be in ‘‘complete
agreement’’ with the affirmative defense of mental dis-
ease of defect, it nevertheless requires agreement with
or acceptance of the affirmative defense to a large
extent, such as what occurred in Duperry, in which
‘‘the parties presented their respective cases without
opposition.’’ (Emphasis added.) Duperry v. Solnit,
supra, 314.
By contrast, in the present case the state opposed
the petitioner’s affirmative defense. First, in his case-
in-chief, the prosecutor elicited testimony from Serrano
that, in his efforts to stop the petitioner from attacking
the victim, Serrano thought that the petitioner was ‘‘high
on some drugs . . . .’’ Moreover, the prosecutor thor-
oughly cross-examined Westphal regarding his diagno-
sis of the petitioner, the petitioner’s drug use, whether
there is a violent aspect to patients with schizoaffective
disorder, and whether the ingestion of PCP could cause
an otherwise nonviolent person to become violent.
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Although the petitioner attempts to minimize the drug
component of the state’s theory of the case, it was the
central issue in contention. The petitioner’s position,
that the prosecutor’s theory of the case relied on the
petitioner’s drug use as the possible cause for his violent
outburst against the victim merely in a cursory fashion,
is contradicted by the record. The prosecutor’s line of
questioning on his cross-examination of Westphal, as
well as his closing argument, were aimed at demonstra-
ting that the petitioner’s assault of the victim was not
prompted by his mental illness, as the petitioner’s his-
tory demonstrated that he previously had been nonvio-
lent, but, rather, may have been the result of the peti-
tioner’s use of PCP, which would have precluded the
petitioner from establishing his affirmative defense
under § 52a-13 (a) that he ‘‘lacked substantial capacity,
as a result of mental disease or defect, either to appreci-
ate the wrongfulness of his conduct or to control his
conduct within the requirements of the law.’’ See Gen-
eral Statutes § 53a-13 (b) (1) (affirmative defense of
mental disease or defect precluded when proximate
cause is due to voluntary ingestion of drugs); see also
footnote 6 of this opinion. Indeed, it was clear from
the prosecutor’s closing argument that he contested
whether the petitioner had met his burden of establish-
ing his affirmative defense and that the state did not
agree that the petitioner’s mental illness was the cause
of the assault. The fact that the prosecutor ultimately
was unsuccessful in his opposition does not undermine
our conclusion that he did indeed oppose the affirma-
tive defense. In his argument to the contrary, the peti-
tioner conflates the question of whether he met his
burden of establishing his affirmative defense of mental
disease or defect with the question of whether the pros-
ecutor contested that affirmative defense.
Moreover, even though the prosecutor conceded that
the petitioner suffers from a mental illness, that is just
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one element of the affirmative defense. The second
element, the causation element—whether, as a result
of the mental disease or defect, the petitioner lacked
the substantial capacity to appreciate the wrongfulness
of his conduct or to control his conduct within the
requirements of the law—undoubtedly was contested
by the prosecutor. Consequently, we agree with the
habeas court’s determination that the prosecutor did
not substantially agree with the petitioner’s affirmative
defense of mental disease or defect. Accordingly, the
habeas court properly determined that Duperry does
not apply to the present case. The petitioner’s first
claim, therefore, fails.
II
We next consider the petitioner’s claim that the
habeas court improperly determined that his trial coun-
sel did not perform deficiently by failing to advise him
regarding the canvass requirements of Duperry and his
affirmative defense of mental disease or defect. The
petitioner, relying on State v. Ouellette, supra, 271 Conn.
768–69, asserts that, even if the habeas court correctly
determined that the underlying criminal proceeding was
truly contested, ‘‘it was incumbent upon trial counsel to
meaningfully convey the Duperry canvass requirements
to the petitioner’’ and that ‘‘[a]dvising the petitioner
of the canvass requirements set forth in Duperry was
necessary’’ for trial counsel to ensure that the petitioner
entered his plea knowingly and intelligently.12 We do
not agree.
12
The petitioner confuses the language of our Supreme Court in Ouellette
stating that, ‘‘in truly contested cases, we reasonably may presume that, in
light of the adversarial nature of the proceeding, defense counsel will be
particularly diligent in advising the defendant of the effect that a claim of
mental disease or defect is likely to have on the defendant’s rights’’; State
v. Ouellette, supra, 271 Conn. 768–69; as requiring counsel to convey the
canvass requirements of Duperry, which, as our Supreme Court has made
clear, must be conveyed only in cases in which ‘‘ ‘the state substantially
agrees with the defendant’s claim of mental disease or defect, with the result
that the trial essentially is not an adversarial proceeding . . . .’ ’’ Id., 767.
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We first set forth general principles of law that govern
our review of claims of ineffective assistance of coun-
sel. ‘‘In Strickland v. Washington, [466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United
States Supreme Court established that for a petitioner
to prevail on a claim of ineffective assistance of counsel,
he must show that counsel’s assistance was so defective
as to require reversal of [the] conviction. . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong of the Strickland
test, the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
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proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . .
‘‘It is axiomatic that courts may decide against a
petitioner on either prong [of the Strickland test],
whichever is easier. . . . [T]he petitioner’s failure to
prove either [the performance prong or the prejudice
prong] is fatal to a habeas petition. . . . [A] court need
not determine whether counsel’s performance was defi-
cient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . .
If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that
course should be followed.’’ (Internal quotation marks
omitted.) Taft v. Commissioner of Correction, 229
Conn. App. 548, 562–63, 327 A.3d 387 (2024), cert.
denied, 351 Conn. 908, 330 A.3d 881 (2025).
The habeas court in the present case made the follow-
ing findings in support of its determination that the
petitioner failed to prove that trial counsel’s representa-
tion was deficient: ‘‘First, as the court has found the
credible evidence adduced supports [trial counsel’s]
characterization of the underlying court trial as ‘advers-
arial’ . . . the court finds summarily as follows: (1)
[trial counsel] did not fail to advise the petitioner of
the Duperry canvass requirements, as such require-
ments are inapplicable to the instant matter; (2) [trial
counsel] did not fail to ensure that the petitioner was
‘properly’ canvassed. As this claim is duplicative of the
claim immediately preceding, the same finding applies.
There were no deficiencies in court canvasses in this
matter; and (3) [trial counsel] was under no obligation
to advise the petitioner of his opportunity to move to
withdraw his plea or appeal the validity of his plea, as,
given the inapplicability of [the] Duperry requirements
to the instant matter, there were no deficiencies in the
court’s canvass.
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‘‘Additionally, the court credits the testimony of [trial]
counsel. The court credits her testimony that after
‘many, many conversations’ between herself and the
petitioner, ‘[they] made the decision together’ that the
[mental disease or defect] defense in [the] hopes of
securing a . . . verdict [of not guilty by reason of men-
tal disease or defect] was the best avenue to pursue.
[Trial counsel] testified credibly [that] the petitioner
believed, after consultation with mental health experts,
that he would receive better mental health care in the
custody of the respondent than with the Department
of Correction. The consultations resulted in the produc-
tion of reports that guided that defense team’s deci-
sions.
‘‘[Trial counsel] testified that the petitioner was ‘not
always dealing with reality’ and [that] ‘many conversa-
tions’ were necessary during the preparation of the
defense. [Trial counsel] testified that she never guaran-
teed the [not guilty by reason of mental disease or
defect] verdict, that she prepared [the petitioner] for
the [potential] of a guilty verdict and a remand to [the]
custody [of the Department of Correction], and [that
she] advised him [that] the defense had to prove the
[mental disease or defect defense] at trial. She further
testified that she would have properly advised the peti-
tioner that a [not guilty by reason of mental disease or
defect] verdict was ‘a very difficult disposition’ to
secure. . . . Further, [trial] counsel discussed options
other than [a not guilty by reason of mental disease or
defect] defense with the petitioner. . . . This court,
based on the credible evidence adduced at the instant
trial, finds that [trial] counsel’s representation was not
deficient, based on the petitioner’s diagnoses, the
underlying trial record, and the characterization of the
incident in question. Finally, [trial] counsel testified
credibly that the petitioner was ‘happy’ with the out-
come of the underlying trial, as it was the outcome he
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Narcisse v. Commissioner of Mental Health & Addiction Services

wanted [in that] he wished to be placed into a therapeu-
tic setting rather than [with the Department of Correc-
tion] . . . .’’
The habeas court also specifically found not credible
the petitioner’s testimony that, inter alia, he did not
understand the consequences of asserting an affirma-
tive defense of not guilty by reason of mental disease
or defect and that his trial counsel failed to advise him
regarding a commitment to the board. In particular, the
habeas court found the petitioner’s testimony to be
‘‘self-serving and contrary to the credited testimony of
[trial] counsel’’ and that ‘‘his assertions find no support
in any part of the record of credible evidence adduced
in this [matter], including [in] any portion of the underly-
ing proceedings as contained in the exhibits provided
to this court. Specifically, the petitioner has failed to
establish (1) that [trial] counsel failed to advise him of
and explore options other than a [mental disease or
defect] defense, (2) that [trial] counsel pressured him
to pursue [a mental disease or defect] defense as
opposed to exploring other options . . . (3) that [trial]
counsel advised him of a brief/short period of commit-
ment to the [board], and (4) that [trial] counsel failed
to research the law and consequences of pursuing an
agreed or contested [mental disease or defect] defense
and to properly advise the petitioner.’’
In light of this court’s conclusion in part I of this
opinion that the canvass requirements of Duperry are
inapplicable to the present case, which involved a con-
tested criminal trial in which the state contested the
petitioner’s affirmative defense of mental disease or
defect, the petitioner’s claim that his trial counsel per-
formed deficiently by failing to advise him regarding
the Duperry canvass requirements necessarily fails.
To the extent that the petitioner also is claiming in
this appeal that his trial counsel performed deficiently
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by failing to advise him adequately regarding his affir-
mative defense of mental disease or defect, we conclude
that this claim fails as well. The primary evidence
offered in support of the petitioner’s claim that his trial
counsel performed deficiently was his own testimony at
the habeas trial. The habeas court, however, specifically
found not credible the petitioner’s testimony that his
trial counsel failed to properly advise him regarding his
affirmative defense of mental disease or defect and that
he did not understand the not guilty by reason of mental
disease or defect process, as well as his contention
that his trial counsel failed to advise him regarding a
commitment to the board. On the other hand, the habeas
court specifically credited trial counsel’s testimony
about the many conversations she had with the peti-
tioner regarding his affirmative defense of mental dis-
ease or defect and the advice she had given him relating
thereto.
‘‘As our Supreme Court has observed, an appellate
court does not . . . evaluate the credibility of the wit-
nesses. . . . Rather, we must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Smith v. Commis-
sioner of Correction, 179 Conn. App. 160, 173, 178 A.3d
1079 (2018); see also Johnson v. Commissioner of Cor-
rection, 229 Conn. App. 577, 614, 327 A.3d 916 (2024)
(‘‘[t]his court must defer to the habeas court’s weighing
of the facts and determinations of credibility’’), cert.
denied, 351 Conn. 902, 329 A.3d 239 (2025).
The habeas court’s determination that trial counsel
did not perform deficiently was based on its assessment
of the credibility of the testimony of trial counsel and
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the petitioner, and this court cannot disturb that credi-
bility assessment. See Smith v. Commissioner of Cor-
rection, supra, 179 Conn. App. 173. ‘‘Because the peti-
tioner’s claim is premised entirely on issues of
credibility, he cannot prevail.’’ Kellman v. Commis-
sioner of Correction, 178 Conn. App. 63, 72, 174 A.3d 206
(2017); see also Ramos v. Commissioner of Correction,
172 Conn. App. 282, 328, 159 A.3d 1174 (‘‘[w]e will not
disturb the habeas court’s finding as it relates to the
petitioner’s credibility’’), cert. denied, 327 Conn. 904,
170 A.3d 1 (2017). The habeas court, therefore, correctly
determined that the petitioner failed to meet his burden
of demonstrating that his trial counsel performed defi-
ciently by failing to advise him properly regarding his
affirmative defense of mental disease or defect.13 See
Crocker v. Commissioner of Correction, 220 Conn. App.
567, 590–94, 300 A.3d 607, cert. denied, 348 Conn. 911,
303 A.3d 10 (2023); Coltherst v. Commissioner of Cor-
rection, 208 Conn. App. 470, 483–84, 264 A.3d 1080
(2021), cert. denied, 340 Conn. 920, 267 A.3d 857 (2022).
Accordingly, we conclude that the habeas court prop-
erly denied the petitioner’s operative habeas petition.
The judgment is affirmed.
In this opinion the other judges concurred.

13
In light of this determination, we need not address whether the petitioner
established the prejudice prong of the Strickland test. See Taft v. Commis-
sioner of Correction, supra, 229 Conn. App. 563.