Michael D. WILLIAMS
George W. BRONSON, Warden.
Argued Nov. 14, 1989.
Neal G. Cone, Sp. Public Defender, for appellant (petitioner).
John O'Meara, Deputy Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Edward Ricciardi, Asst. State's Atty., for appellee (respondent).
Before DUPONT, C.J., and SPALLONE and BARNETT, JJ.
[21 Conn.App. 261] DUPONT, Chief Judge.
The petitioner was convicted, after a trial to the court, Falsey, J., of the crimes of burglary in the second degree in violation of General Statutes § 53a-102(a) and of interfering with a police officer in violation of General Statutes § 53a-167a(a). He was sentenced to a term of imprisonment of seven years and four months, followed by three years of probation. The convictions
were upheld in State v. Williams, 205 Conn. 456, 534 A.2d 230 (1987). The petitioner subsequently filed a petition for a writ of habeas corpus based on an allegation of ineffective assistance of counsel. After a hearing, the habeas court denied his petition and certified its decision for review by this court. We find no error.
[21 Conn.App. 262] The underlying facts are set out in detail in State v. Williams, supra, at 457-58, 534 A.2d 230. We summarize those facts relevant to the issues in the present appeal. The victim met the petitioner at the home of a friend. The petitioner offered to sell the victim a tape player, which she agreed to buy. He then accompanied her on the five or ten minute walk to her apartment so that she could get the money for the purchase. After the sale was completed, the petitioner left the apartment, and the victim locked up and went to bed, leaving the kitchen partially illuminated by a pantry light and a porch light. Between 3:30 and 4 a.m., she awoke and, from her bed, saw a man leaning over her kitchen table with his back to her. When she screamed, he turned and looked at her. She then telephoned the police, describing the intruder as a black male wearing a blue jacket, gray pants, a light cap and sunshades.
The police broadcast a description of the intruder on the police
radio. About four minutes after the call was broadcast, the petitioner was stopped, 200 yards from the victim's home, by two officers in a patrol car, and he was informed that he fit the description of a suspect in a burglary that had just occurred nearby. He was also informed that the victim was being brought to the site to see if she could identify him as the intruder. The petitioner then created a disturbance, as a result of which he was forcibly subdued, handcuffed and arrested on a charge of breach of the peace. Upon the victim's arrival, she positively identified the petitioner as the intruder. Later that day, she informed police that the petitioner was also the man who had sold her a tape player a few hours earlier that evening. At trial, she again identified the petitioner as the intruder.
Following his conviction and the denial of his habeas corpus petition, the petitioner appeals claiming that the habeas court erred in not finding that he had ineffective[21 Conn.App. 263] assistance of counsel (1) as to the issue of the identification of him as the perpetrator and (2) as to his plea. The habeas court's decision was based on its finding of insufficient prejudice as to the identification issue and on the petitioner's failure to sustain his burden of proving by a preponderance of the evidence the inadequacy of the advice of counsel as to the plea entered.
The right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). To prevail on a claim of denial of effective assistance, the petitioner bears the burden of proving that the services provided him by trial counsel were not reasonably within the range of competence possessed by lawyers with ordinary training and skill in the criminal law. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 195 Conn. at 640, 490 A.2d 82; Chace v. Bronson, supra, 19 Conn.App. at 678, 564 A.2d 303. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been
different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).
[21 Conn.App. 264] We turn first to the petitioner's claim that his attorney's failure to challenge the show-up identification of the petitioner was ineffective assistance of counsel. For the petitioner's motion to suppress to have succeeded, the court would have to determine that the procedure was unnecessarily suggestive and that, in the totality of the circumstances, it was unreliable. State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). The petitioner claims that the show-up procedure was unnecessarily suggestive because (1) prior to the victim's arrival at the scene of the show-up, the police had informed her that they had the suspect, (2) he was presented to the victim for identification in handcuffs and "flanked by police officers," and (3) he was the sole subject of the show-up.
Almost any one-to-one identification procedure is suggestive because it conveys to the viewer that police have reason to believe that the lone subject of the viewing is guilty. State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). It would be difficult, therefore, to argue that the show-up in this case was not suggestive, but whether it was unnecessarily so is the question.
"[P]rompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and ... the benefits of promptness not only aid reliability but permit a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay." State v. DeJesus, 7 Conn.App. 309, 315-16, 508 A.2d 463 (1986); State v. Sims, 12 Conn.App. 239, 242, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988). Here, the show-up procedure was held less than an hour after the burglary was committed and the petitioner was stopped, approximately one block from the scene of the break-in, only four ...