Mack v. Commissioner of Correction

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Mack v. Commissioner of Correction RICARDO MACK v. COMMISSIONER OF CORRECTION (AC 46562) Clark, Westbrook and Palmer, Js. Syllabus The petitioner, who had previously been convicted of, inter alia, murder, appealed, following the denial of his petition for certification to appeal from the habeas court’s judgment denying his petition for a writ of habeas corpus. He claimed, inter alia, that the court improperly rejected his claim that his prior habeas counsel, M, had rendered ineffective assistance by failing to raise in his previous habeas action two claims of ineffective assistance against his criminal trial counsel, P. Held: The habeas court abused its discretion in denying the petitioner’s petition for certification to appeal, as his challenge to the court's resolution of the issue was not frivolous and warranted appellate review. The habeas court properly rejected the petitioner’s claim that M provided ineffective assistance by failing to raise claims in his prior habeas action that P had provided ineffective assistance by failing to object to certain evidence pertaining to the victim’s autopsy in violation of his right to confrontation under the United States constitution, as the court properly determined that the petitioner failed to meet his burden of proving M provided ineffective assistance, the petitioner having failed to prove that P performed deficiently in failing to object to the admissibility of the autopsy report and certain testimony about the report. The petitioner’s claim that the habeas court improperly rejected his claim that M provided ineffective assistance by failing to raise claims in his prior habeas action that P had provided ineffective assistance by failing to advise him regarding the availability of sentence review and to pursue such review on his behalf lacked merit, as, even assuming that P rendered ineffective assistance by failing to represent the petitioner with respect to sentence review, the petitioner failed to demonstrate that M performed deficiently by not raising a claim of ineffective assistance against P predicated on P’s failure to seek sentence review for the petitioner. Argued September 4, 2025—officially released June 2, 2026 Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Oliver, J., granted the respondent’s motion to dismiss count one of the petition; thereafter, the case was tried to the court, Newson, J.; judgment denying the petition; subsequently, the court, Newson,  Mack v. Commissioner of Correction J., denied the petition for certification to appeal, and the petitioner appealed to this court. Affirmed. Julia K. Conlin, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appel- lant (petitioner). Nicholas Scarlett, deputy assistant state’s attorney, with whom, on the brief, were Matthew Gedansky, state’s attorney, and Angela Macchiarulo, supervisory assistant state’s attorney, for the appellee (respondent). Opinion PALMER, J. In this habeas on a habeas,1 the petitioner, Ricardo Mack, appeals following the denial of his peti- tion for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus challenging his 2008 conviction of one count of murder and two counts of assault in the first degree. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly rejected his claim that his prior habeas counsel rendered ineffective assistance by failing to raise in his previous habeas action two claims of ineffective assistance against his criminal trial counsel, namely, trial counsel’s failure to object to certain hearsay testimony concerning the autopsy of the murder victim and trial counsel’s failure both to advise the petitioner of his right to sentence review and to seek such review on the petitioner’s behalf. Although we agree with the petitioner that the habeas court abused its discretion in denying his petition for certification to appeal, we conclude that the habeas court properly determined that the petitioner failed to meet his burden of proving ineffective assistance of prior habeas counsel because the petitioner did not prove that his criminal 1 As we discuss more fully hereinafter, “[a] habeas on a habeas occurs when a petitioner files a subsequent petition for a writ of habeas corpus challenging the effectiveness of counsel in litigating a previous petition for a writ of habeas corpus that had claimed ineffective assistance of counsel at the petitioner’s underlying criminal trial or on direct appeal.” Haywood v. Commissioner of Correction, 194 Conn. App. 757, 759 n.1, 222 A.3d 545 (2019), cert. denied, 335 Conn. 914, 229 A.3d 729 (2020).  Mack v. Commissioner of Correction trial counsel performed deficiently. Accordingly, we affirm the judgment of the habeas court denying the petitioner’s habeas petition. The following facts, as set forth by this court in the petitioner’s direct appeal from his criminal conviction, and procedural history are relevant to the petitioner’s claims on appeal. “A shooting resulting in the death of Chaz Booth and gunshot injuries to two other persons, Terrice Kimble and Christopher Henry, occurred in the early morning hours of December 24, 2005, in Hartford. Booth, Kimble, Henry and the [petitioner] were among a crowd of people in Papa’s Pizza, which is a restaurant on Union Place in Hartford. Booth was sitting at a table near the front of the restaurant on the right side when, at approximately 2:42 a.m., the [petitioner] raised his arm and fired several gunshots from a handgun. The [petitioner] then moved forward, closer to Booth, and fired additional gunshots before running out the door.2 Ten cartridge cases were recovered from the restaurant. Booth died from a total of seven gunshot wounds, with bullet trajectories indicating that the bullets entered him from the back. “When the gunshots were fired, Kimble jumped on top of a table to make his way out of the restaurant. Once he was outside, he discovered that he had been shot and had suffered wounds to his arm and torso. Henry was sitting at the table opposite from where Booth was sitting. When the gunshots were fired, Henry dropped to the floor and hid under the table. He discovered that he had been shot in the leg, so he ‘scooted’ out of the restaurant without getting up from the floor. “The [petitioner] fled the restaurant in a red Jeep Cherokee driven by another person. A Hartford police officer responded to a report of gunshots being fired at the restaurant and learned that a red Jeep Cherokee had 2 “The restaurant had a security system, which recorded a silent video from four small cameras inside. Police seized the video, which showed the shooter and the shooting, but not the victim. The video was admit- ted as a full exhibit at trial, and portions of the recording were shown to the jury.” State v. Mack, 129 Conn. App. 127, 129 n.3, 19 A.3d 689, cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011).  Mack v. Commissioner of Correction left the scene. On his way to the restaurant, the officer came upon a motor vehicle accident involving a red Jeep Cherokee. When the officer approached, the [petitioner] fled from the vehicle on foot. The officer apprehended the [petitioner], arrested him and brought him to the police station. The police recovered the handgun used in the shooting from the vehicle. “The [petitioner] made a statement to the police in which he confessed to the shooting.3 He stated that he believed that Booth had shot and killed his friend Marlon Atkinson, also known as ‘Pints,’ in 2004. The [petitioner] shot Booth at the restaurant in retaliation for Atkinson’s murder. “At [the petitioner’s criminal] trial, counsel for the [petitioner] argued that the [petitioner] had acted in self-defense. Two witnesses testified in support of this defense. Jaquan Leggett testified that the [petitioner] was in a heated conversation with someone at the restau- rant just prior to the shooting, and that he saw a man consistent with Booth’s description with a gun in his hand. Floyd Riley testified that, sometime before the shooting, the [petitioner] had told him that Booth had threatened him. The [petitioner] did not mention any of these facts in his signed confession. Both surviving victims of the shooting, Kimble and Henry, testified that they did not recall seeing Booth with a gun, nor did they recall hearing any argument between the [petitioner] and Booth. “At trial, the state [also] presented evidence relating to the [petitioner’s] consciousness of guilt. Specifically, it pointed to the [petitioner’s] flight from the restaurant, the [petitioner’s] flight from the red Jeep Cherokee fol- lowing the collision and the arrival of the police, and the alleged effort of the [petitioner], in the form of certain notes [purportedly written by the petitioner] seized from 3 “The court found that the [petitioner] had been advised properly of his rights and had knowingly, intelligently and voluntarily waived them.” State v. Mack, 129 Conn. App. 127, 130 n.4, 19 A.3d 689, cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011).  Mack v. Commissioner of Correction the cell of an inmate named Marcus Perry, to solicit tes- timony concerning his claim of self-defense.” (Footnote altered; footnote in original.) State v. Mack, 129 Conn. App. 127, 129–30, 19 A.3d 689, cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011). Following a jury trial, the petitioner was convicted of one count of murder in violation of General Statutes § 53a-54a (a) and two counts of assault in the first degree with a firearm in violation of General Statutes § 53a- 59 (a) (5). Id., 128. The trial court rendered judgment accordingly and imposed a total effective sentence of ninety years of incarceration. Id., 128 n.1. The petitioner directly appealed from that judgment of conviction, which this court affirmed.4 Id., 141. The petitioner commenced his first habeas action in 2011, alleging that his criminal trial counsel, Attorney Robert Pickering, rendered ineffective assistance by fail- ing to conduct an adequate investigation into potential defense witnesses and failing to present the testimony of those witnesses at trial in support of the petitioner’s claim of self-defense. Following a trial at which the peti- tioner was represented by Attorney Bruce McIntyre, the habeas court rejected those claims and denied the petition. See Mack v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-XX-XXXXXXX-S (August 22, 2014). From that judgment, the petitioner unsuccess- fully appealed to this court. See Mack v. Commissioner of Correction, 165 Conn. App. 901, 137 A.3d 118, cert. denied, 321 Conn. 927, 138 A.3d 287 (2016). The petitioner commenced a second habeas action in 2015, which underlies the present appeal. On February 23, 2022, the petitioner filed the operative amended petition for a writ of habeas corpus, which contains two 4 In his direct appeal, the petitioner’s sole claim involved the trial court’s allegedly improper admission into evidence of the handwritten notes, apparently written by the petitioner and seized from Perry’s cell, which, the state maintained, reflected an attempt by the petitioner to persuade Perry to testify falsely on the petitioner’s behalf. State v. Mack, supra, 129 Conn. App. 128. This court rejected the petitioner’s contention that the admission of the notes was improper. Id.  Mack v. Commissioner of Correction counts. In count one, the petitioner alleged ineffective assistance by Pickering for, inter alia, failing to object to certain testimony about the victim’s autopsy by the then state’s chief medical examiner, who had not personally conducted the autopsy, in violation of the petitioner’s right to confrontation under the sixth amendment to the United States constitution.5 In addition, the petitioner alleged that Pickering rendered ineffective assistance for failing to advise him regarding the availability of sentence review and for failing to pursue such review on his behalf. In count two, the petitioner alleged ineffec- tive assistance on the part of McIntyre in his first habeas action due to his failure to raise the issues asserted in count one. The respondent, the Commissioner of Correction, filed a motion to dismiss count one of the operative petition predicated on successive petition and abuse of writ grounds and, following a hearing, the court, on August 12, 2022, dismissed count one on those grounds.6 With respect to count two, the respondent filed a return in which he either denied the substantive allegations of the petition or left the petitioner to his proof. At the habeas trial, which took place on February 23, 2023, the court heard testimony from the petitioner, McIntyre, and Pickering. In its subsequent memorandum of decision dated April 4, 2023, the court concluded that the petitioner did not establish that McIntyre rendered ineffective assistance by not alleging in his first habeas action that Pickering rendered ineffective assistance by failing to raise a con- frontation clause objection and by failing to advise the 5 The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const., amend. VI. The sixth amendment right to confrontation is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). 6 On appeal, the petitioner does not challenge the habeas court’s dis- missal of count one.  Mack v. Commissioner of Correction petitioner regarding sentence review and failing to seek such review on the petitioner’s behalf.7 The court, there- fore, denied the petition for a writ of habeas corpus. The petitioner then filed a petition for certification to appeal, which the habeas court denied, and this appeal followed. I First, we address the petitioner’s claim that the habeas court improperly denied his petition for certification to appeal. We agree with the petitioner. The following legal principles are applicable to our consideration of the petitioner’s claim. “In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 [g]8 prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whether the 7 The court also rejected claims raised by the petitioner that McIntyre provided ineffective assistance by failing to plead and prove that Picker- ing did not: challenge the admissibility of the testimony of a handwrit- ing expert presented by the state; adequately investigate and present a claim of self-defense; investigate and present the testimony of a certain potential witness identified by the petitioner; and consult with and pres- ent the testimony of an expert on gunshot wounds. On appeal, the peti- tioner does not contest the habeas court’s determination that he failed to establish ineffective assistance with respect to these other grounds. 8 General Statutes § 52-470 (g) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a per- son who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”  Mack v. Commissioner of Correction habeas court abused its discretion in denying certifica- tion to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a dif- ferent manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . A peti- tioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Emphasis in original; footnote added; internal quotation marks omitted.) Ramos v. Commis- sioner of Correction, 237 Conn. App. 372, 379–80, 352 A.3d 654 (2026). “In determining whether the habeas court abused its discretion in denying the petitioner’s request for certi- fication, we necessarily must consider the merits of the petitioner’s underlying [claim] to determine whether the habeas court reasonably determined that the peti- tioner’s appeal was frivolous. In other words, we review the petitioner’s substantive [claim] for the purpose of ascertaining whether [that claim satisfies] one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court’s denial of the petition for certification.” (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 230 Conn. App. 384, 392, 330 A.3d 134, cert. denied, 351 Conn. 921, 333 A.3d 103 (2025). As our discussion in part II A of this opinion reflects, the issue of whether McIntyre rendered ineffective assis- tance in the first habeas action for failing to allege that Pickering performed deficiently by not raising a confron- tation clause objection to the autopsy report and Carver’s testimony about that report in accordance with Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), gives rise to the question of whether such a claim would have been novel or untested at the time of the petitioner’s criminal trial. See, e.g., Santaniello v. Commissioner of Correction, 230 Conn. App. 741, 768–69, 331 A.3d 739 (counsel’s failure to pursue novel  Mack v. Commissioner of Correction or untested constitutional argument does not constitute ineffective assistance), cert. denied, 351 Conn. 926, 333 A.3d 1109 (2025). Although we ultimately reject the petitioner’s claim with respect to this issue, we agree with the petitioner that his challenge to the habeas court’s resolution of the issue is not frivolous and warrants appellate review under the criteria set forth in Simms v. Warden, supra, 230 Conn. 615–16.9 Accordingly, we conclude that the habeas court abused its discretion in denying the petition for certification to appeal. II The petitioner contends that the court improperly rejected his claim that McIntyre provided ineffective assistance by failing to raise claims in his prior habeas action regarding Pickering’s failure (1) to object to the admission of certain evidence pertaining to the victim’s autopsy on the basis that it violated the petitioner’s right to confrontation under the United States constitution pursuant to Crawford v. Washington, supra, 541 U.S. 36, because the associate medical examiner who conducted the autopsy did not testify at the petitioner’s criminal trial and therefore was not subject to cross-examination and (2) to advise him regarding the availability of sen- tence review and to pursue such review on his behalf. We reject each of these claims. We begin with an overview of the legal principles that govern our review of the petitioner’s ineffective assis- tance of counsel claims. “In Lozada [v. Warden, 223 Conn. 834, 842–43, 613 A.2d 818 (1992)], our Supreme Court established that habeas corpus is an appropri- ate remedy for the ineffective assistance of appointed habeas counsel, authorizing what is commonly known as a habeas on a habeas, namely, a second petition for a writ of habeas corpus . . . challenging the performance 9 In light of our conclusion that the petitioner is entitled to appellate review of the habeas court’s denial of his habeas petition, we need not consider whether the habeas court improperly denied his petition for certification to appeal with respect to the other issues that we address herein.  Mack v. Commissioner of Correction of counsel in litigating an initial petition for a writ of habeas corpus . . . [that] had claimed ineffective assis- tance of counsel at the petitioner’s underlying criminal trial or on direct appeal. . . . Nevertheless, the court in Lozada also emphasized that a petitioner asserting a habeas on a habeas faces the herculean task . . . of proving in accordance with Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. . . . Any new habeas trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appel- late counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” (Internal quotation marks omitted.) Santaniello v. Commissioner of Correction, supra, 230 Conn. App. 749. “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. . . . 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 determina- tions made by the habeas court. . . . [I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [supra, 466  Mack v. Commissioner of Correction U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To sat- isfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . To satisfy the prejudice prong, a claim- ant must demonstrate that there is a reasonable prob- ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . “It is axiomatic that courts may decide against a peti- tioner 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 deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies. . . . If it is easier to dis- pose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Citations omitted; internal quotation marks omitted.) Mercer v. Commissioner of Correction, 222 Conn. App. 713, 722–23, 306 A.3d 1073 (2023), cert. denied, 348 Conn. 953, 309 A.3d 303 (2024). “In order for a petitioner to prevail on a claim of inef- fective assistance on the basis of deficient performance, he must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing profes- sional norms. . . . In any case presenting an ineffective- ness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a  Mack v. Commissioner of Correction criminal defendant. Any such set of rules would inter- fere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. . . . [J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the diffi- culties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assis- tance; that is, the [petitioner] must overcome the pre- sumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . Indeed, our Supreme Court has recognized that [t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. . . . [A] reviewing court is required not simply to give [the trial attorney] the benefit of the doubt . . . but to affirma- tively entertain the range of possible reasons . . . counsel may have had for proceeding as [he] did . . . . “An evaluation of the prejudice prong involves a con- sideration of whether there is a reasonable probability that, absent the errors, the [fact finder] would have had a reasonable doubt respecting guilt. . . . A reasonable prob- ability is a probability sufficient to undermine confidence in the outcome. . . . We do not conduct this inquiry in a vacuum, rather, we must consider the totality of the evidence before the judge or jury. . . . Further, we are required to undertake an objective review of the nature and strength of the state’s case. . . . [S]ome errors will have had pervasive effect on the inferences to be drawn  Mack v. Commissioner of Correction from the evidence, altering the entire evidentiary pic- ture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the deci- sion reached would reasonably likely have been different absent the errors. . . . “In other words, [i]n assessing prejudice under Strick- land, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. . . . Instead, Strickland asks whether it is reasonably likely the result would have been different. . . . The likelihood of a differ- ent result must be substantial, not just conceivable. . . . Notably, the petitioner must meet this burden not by use of speculation but by demonstrable realities.” (Citation omitted; internal quotation marks omitted.) Id., 729–31. In sum, “the ultimate focus of [the ineffectiveness] inquiry must be on the fundamental fairness of the pro- ceeding whose result is being challenged.” Strickland v. Washington, supra, 466 U.S. 696. Thus, “[t]the bench- mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id., 686. With these principles in mind, we turn to the petitioner’s ineffective assistance claims. A The petitioner first contends that the court improperly rejected his claim that McIntyre rendered ineffective assistance by failing to allege in the first habeas action that Pickering rendered ineffective assistance for not objecting to the admission of the victim’s autopsy report, and testimony about that report, on the basis that it violated his right to confrontation under Crawford. We disagree.  Mack v. Commissioner of Correction The following additional facts and procedural history are relevant to the petitioner’s claim. At the petitioner’s criminal trial, the state called as a witness Harold Wayne Carver II, the state’s chief medical examiner at that time. Carver testified that the victim’s autopsy had been conducted by Malka Shah, an associate medical examiner who, at the time of Carver’s testimony, was retiring from the Office of the Chief Medical Examiner, effective the following day. Although Carver did not perform the autopsy himself, he had reviewed the victim’s autopsy photographs and the autopsy report prepared by Shah. Carver explained that the autopsy report was made and kept in the ordinary course of business of the Office of the Chief Medical Examiner. The autopsy report and the autopsy photographs were admitted into evidence as full exhibits during Carver’s testimony, with no objection from Pickering. In his testimony at the petitioner’s criminal trial, Carver conveyed certain information contained in Shah’s autopsy report while also providing his own independent opinions based on his review of the autopsy photographs. On direct examination, Carver testified, among other things, that Shah’s report was consistent with his review of the autopsy photographs regarding the number of gunshot wounds that the victim had suffered. Carver explained that the victim was struck by seven projectiles and that he had a total of eleven gunshot wounds, includ- ing seven entrance wounds and four exit wounds.10 Carver further explained that all of the entrance wounds were to the victim’s back, and all of the gunshot wounds at the front of the victim’s body were exit wounds. In addition, Carver provided testimony differentiating between the entrance and exit wounds based on the appearance of those wounds as depicted in the autopsy photographs. During his cross-examination of Carver, Pickering highlighted the fact that Carver himself had not per- formed the autopsy and that he was “interpreting” Shah’s report. Pickering also sought to cast doubt on Shah’s conclusion that the gunshot wound to the victim’s 10 Carver also explained that six bullets had been recovered, three from the victim’s clothing and three from the victim’s body.  Mack v. Commissioner of Correction mouth was an exit wound by pointing out, through Carver, that she had reached that conclusion by a “pro- cess of elimination.”11 On redirect examination, Carver explained that he agreed with Shah’s conclusions regard- ing the entrance and exit wounds based on his indepen- dent review of the photographs.12 At the habeas trial, Pickering testified that he could not recall whether he had objected to the admission of the autopsy report and he also could not say whether he was aware of Crawford at the time of the petitioner’s criminal trial. He assumed, however, that the autopsy report was admissible as a business record and, on that basis, he would not have objected to it. In addition, he testified that, if the report “was coming in anyway,” he was “not going to highlight it.” McIntyre testified that he did not see an issue with Carver’s testimony in light of the fact that Carver was the state’s chief medical examiner at that time and, testifying as an expert in the field of pathology, he properly could rely on hearsay in reaching his opinion. As a result, McIntyre did not view Pickering’s failure to object to such testimony as an unreasonable exercise of professional judgment. In its memorandum of decision, the habeas court rejected the petitioner’s ineffective assistance claim, concluding that McIntyre did not perform deficiently in failing to allege that Pickering’s failure to object to the admissibility of the autopsy report and Carver’s related testimony because, under Crawford and Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)—the controlling United States Supreme Court precedent at the time of the petitioner’s crimi- nal trial—the autopsy report was admissible as a busi- ness record. The habeas court further observed that, 11 Carver explained that Shah had recorded a “wound track” associ- ated with that gunshot wound, tracing the pathway of the bullet from the wound demarking its apparent point of entry at the back of the victim’s body to the exit wound. Carver testified that he agreed with Shah’s conclusion. 12 We discuss Carver’s testimony regarding the autopsy photographs more fully later in this opinion.  Mack v. Commissioner of Correction “although [Carver] necessarily referred to the findings made by . . . Shah, he offered his own independent expla- nation as to what those findings meant and also added additional expert information explaining the meaning of the photographs depicting the injuries suffered by the victim.” Accordingly, the habeas court rejected the petitioner’s claims of ineffective assistance by Pickering and McIntyre with respect to Pickering’s failure to object to the admissibility of the autopsy report and Carver’s testimony about the report. Before turning to the merits of the petitioner’s ineffec- tive assistance claim, we first undertake a brief review of Crawford and its progeny to place the petitioner’s claim in proper context. “Prior to Crawford, the United States Supreme Court had not distinguished between testi- monial and nontestimonial statements for purposes of determining when the admission of hearsay statements of unavailable witnesses in criminal cases violated the con- frontation clause of the sixth amendment. See Crawford v. Washington, supra, 541 U.S. 71–72 (Rehnquist, C. J., concurring in the judgment). Rather, under the previ- ous test forth set in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled in part by Crawford v. Washington, [supra, 541 U.S. 36] all such statements were admissible if they had ‘adequate indicia of reliability . . . [which] can be inferred . . . where the evidence falls within a firmly rooted hearsay exception . . . [or pursuant to] a showing of particularized guarantees of trustworthiness.’ . . . Id., 66. . . . To satisfy the con- stitutional demand of confrontation prescribed by the sixth amendment, the court [in Crawford] reformulated the test to distinguish between testimonial and nontes- timonial statements, holding that testimonial evidence is not admissible under the sixth amendment, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” (Citation omitted.) Santaniello v. Commissioner of Correction, supra, 230 Conn. App. 763–64.  Mack v. Commissioner of Correction The issue in Crawford was whether a tape-recorded statement that the defendant’s wife had given to the police was properly admitted into evidence even though she was unavailable to testify at trial due to the marital privilege. Crawford v. Washington, supra, 541 U.S. 40. The court in Crawford held that, regardless of its “indi- cia of reliability”; id., 42; the tape recording was barred under the confrontation clause because the statement, like other such statements obtained pursuant to police interrogation, was testimonial and therefore inadmis- sible without the opportunity for cross-examination. Id., 68–69. As to other types of statements, however, the court declined “to spell out a comprehensive defini- tion of ‘testimonial.’ ” Id., 68. Nevertheless, the court broadly explained that “[v]arious formulations of this core class of testimonial statements exist: [1] ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross- examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . [and] [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . . Regard- less of the precise articulation, some statements qualify under any definition . . . .” (Citations omitted; internal quotation marks omitted.) Id., 51–52.