April 11, 2018
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Prats, J.; judgment denying the petition,
from which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Gwendolyn S. Bishop, assigned counsel, for the appellant
Mitchell S. Brody, senior assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney and Eva Lenczewski, supervisory assistant
state's attorney, for the appellee (respondent).
Sheldon, Bright and Harper, Js.
petitioner, Charles Marshall, appeals from the judgment of
the habeas court denying his amended petition for a writ of
habeas corpus. On appeal, the petitioner claims that the
court erroneously determined that his trial counsel did not
provide ineffective assistance by (1) having an actual
conflict of interest as a result of his prior representation
of a witness in an unrelated criminal case; (2) failing to
object to the trial court's exclusion of the petitioner
from participation in an in-chambers conference; (3) failing
to move to suppress one witness' identification of him
from a photographic array; and (4) failing to challenge the
consolidation of his two criminal cases for
trial. We disagree and, accordingly, affirm the
judgment of the habeas court.
following facts and procedural history, as summarized by this
court in the petitioner's direct appeal, are relevant:
‘‘On the morning of July 26, 2007, the
[petitioner] entered the premises located at 29 Water-ville
Street in Waterbury with the intent to steal. The
[petitioner] proceeded to enter 103 Waterville Street with
the intent to steal in the afternoon of July 26, 2007. The
[petitioner] entered the premises at both locations by prying
open the doors with a screwdriver. The [petitioner] also was
armed with a tire iron, a dangerous instrument, during the
commission of both of the burglaries.'' State
v. Marshall, 132 Conn.App. 718, 721, 33 A.3d
297 (2011), cert. denied, 303 Conn. 933, 36 A.3d 693 (2012).
witnesses, Kevin Chamberland and Lourdes Hernandez,
separately encountered the petitioner while he was
burglarizing 29 Waterville Street. Id., 730.
Chamberland escorted the petitioner out of the second floor
landing at approximately 10:30 a.m.; Hernandez found the
petitioner in her second floor living room at approximately
11:20 a.m. Id. Another witness, Miguel Rios,
confronted the petitioner in his third floor apartment at 103
Waterville Street at approximately 1 p.m. and informed the
landlord of the burglary. Id., 731.
‘‘[The victim], the son of the landlord of 103
Waterville Street, chased the [petitioner] from the premises
with a baseball bat. [The victim], however, did not swing the
bat at the [petitioner] during the chase. While in flight
from the burglary, the [petitioner] hit [the victim] in the
head with the tire iron, causing severe injury.''
(Footnote omitted.) Id., 721.
was evidence that officers found the [petitioner] . . . on
the front porch of a nearby house breathing heavily and
sweating profusely. Six witnesses; Chamberland, Hernandez,
Rios, [the victim], [Brian] Levin and [Jamal] Trammell;
viewed photographic arrays of possible suspects. Each of
these witnesses positively identified the
[petitioner].'' Id., 731.
petitioner waived his right to a jury trial and subsequently
was convicted of two counts of burglary in the second degree
in violation of General Statutes (Rev. to 2007) §
53a-102 (a) (2), two counts of burglary in the first degree
in violation of General Statutes (Rev. to 2007) §
53a-101 (a) (1) and (a) (2), assault in the first degree in
violation of General Statutes § 53a-59 (a) (1), and two
counts of violation of probation, resulting in a sentence of
sixty-two and one-half years of incarceration. This court
affirmed the judgment. Id., 721-22.
amended petition for a writ of habeas corpus dated September
4, 2015, the petitioner asserted, inter alia, that his trial
counsel, Attorney Dennis Harrigan, provided ineffective
assistance on the basis of (1) an actual conflict of interest
due to his prior representation of Brian Levin, a state's
witness, in an unrelated criminal matter, (2) failing to
object to the petitioner's exclusion from an in-chambers
conference to discuss the possible conflict of interest, (3)
failing to move to suppress a witness' identification of
him from a photographic array, and (4) failing to object to
the consolidation of his two criminal cases for trial.
Following a trial, the habeas court denied the petition but
granted the petition for certification to appeal. This appeal
standard of review for the habeas court's findings of
fact and conclusions of law on a claim of ineffective
assistance of counsel is well established. ‘‘In a
habeas appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erroneous,
but our review of whether the facts as found by the habeas
court constituted a violation of the petitioner's
constitutional right to effective assistance of counsel is
plenary.'' (Internal quotation marks omitted.)
David P. v. Commissioner of Correction, 167
Conn.App. 455, 468, 143 A.3d 1158, cert. denied, 323 Conn.
921, 150 A.3d 1150 (2016).
the sixth amendment to the United States constitution, a
criminal defendant is guaranteed the right to the effective
assistance of counsel.'' Skakel v.
Commissioner of Correction, 329 Conn. 1, 29, ___
A.3d ___ (2018). ‘‘To determine whether a
defendant is entitled to a new trial due to a breakdown in
the adversarial process caused by counsel's inadequate
representation, we apply the familiar two part test adopted
by the court in Strickland [v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)]. A convicted defendant's claim that
counsel's assistance was so defective as to require
reversal of a conviction . . . has two components. First, the
defendant must show that counsel's performance was
deficient. This requires [a] showing that counsel made errors
so serious that counsel was not functioning as the counsel
guaranteed the defendant by the [s]ixth [a]mendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires [a] showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable. . . .
The sixth amendment, therefore, does not guarantee perfect
representation, only a reasonably competent attorney. . . .
Representation is constitutionally ineffective only if it so
undermined the proper functioning of the adversarial process
that the defendant was denied a fair trial.''
(Citation omitted; internal quotation marks omitted.)
Id., 30-31. It also is well settled that a reviewing
court can find against a petitioner on either
Strickland prong, whichever is easier. Small
v. Commissioner of Correction, 286 Conn. 707,
713, 946 A.2d 1203, cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336
respect to the actual prejudice prong, [t]he habeas
petitioner must show not merely that the errors at . . .
trial created the possibility of prejudice, but that
they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions. . . . Such a showing of pervasive
actual prejudice can hardly be thought to constitute anything
other than a showing that the [petitioner] was denied
fundamental fairness at trial.'' (Emphasis in
original; internal quotation marks omitted.) Wilcox
v. Commissioner of Correction, 162 Conn.App.
730, 741, 129 A.3d 796 (2016).
first address the petitioner's claim that Harrigan
rendered ineffective assistance on the basis of an actual
conflict of interest. The gravamen of the petitioner's
claim is that Harrigan previously represented Levin in an
unrelated criminal matter prior to the petitioner's
trial. According to the petitioner, this representation
resulted in an actual conflict of interest, which, had the
petitioner known, he would not have waived, but instead would
have sought to avoid by requesting the appointment of
different counsel. Due to this alleged conflict, the
petitioner claims that (1) Harrigan failed to impeach Levin
with his pending criminal charges during cross-examination
and (2) because he was not advised that Harrigan would not
impeach Levin with his pending criminal charges on
cross-examination, the petitioner did not knowingly,
intelligently, and voluntarily waive the conflict of interest
despite having been canvassed by the court.
Supreme Court has established the proof requirements where a
habeas corpus petitioner claims ineffective assistance of
counsel because of a claimed conflict of interest. Where . .
. the defendant claims that his counsel was burdened by an
actual conflict of interest . . . the defendant need not
establish actual prejudice. . . . Where there is an actual
conflict of interest, prejudice is presumed because counsel
[has] breach[ed] the duty of loyalty, perhaps the most basic
of counsel's duties. Moreover, it is difficult to measure
the precise effect on the defense of representation corrupted
by conflicting interests. . . . In a case of a claimed
conflict of interest, therefore, in order to establish a
violation of the sixth amendment the defendant ...