EDWIN LEON, JR.
v.
COMMISSIONER OF CORRECTION
Argued
November 28, 2018
Procedural
History
Amended
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Sferrazza, J.; judgment denying the petition, from
which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Mark
Rademacher, assistant public defender, for the appellant
(petitioner).
Laurie
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Gail P. Hardy, state's
attorney, and Michael J. Proto, assistant state's
attorney, for the appellee (respondent).
DiPentima, C. J., and Alvord and Eveleigh, Js.
OPINION
DIPENTIMA, C. J.
The
focus of the petitioner Edwin Leon, Jr.'s, appeal from
the judgment of the habeas court denying his petition for a
writ of habeas corpus is on the conduct of his criminal trial
counsel during closing argument. On appeal, the petitioner
claims that (1) that conduct violated his right to client
autonomy under the sixth amendment to the United States
constitution, and (2) the habeas court improperly determined
that the petitioner had not been denied the effective
assistance of counsel by that conduct. We conclude that the
former was not pleaded or decided by the habeas court and
therefore is not properly before this court. With respect to
the latter, the petitioner's claim of ineffective
assistance of counsel fails, as he did not establish
prejudice. Accordingly, we affirm the judgment of the habeas
court.
Following
a jury trial, the petitioner was convicted of manslaughter in
the first degree with a firearm (reckless indifference) in
violation of General Statutes §§ 53a-55 (a) (3) and
53a-55a, and carrying a revolver without a permit in
violation of General Statutes § 29-35. In affirming the
petitioner's conviction, this court set forth the
following facts which the jury reasonably could have found.
"The [petitioner] and the victim, Krisann Pouliot, had
been in a romantic relationship for three years and lived in
the home of Pouliot's mother in East Hartford. On May 19,
2012, after a night of drinking and arguing, the [petitioner]
and Pouliot returned home where the [petitioner] fatally shot
Pouliot in the neck. The [petitioner] subsequently was
arrested and charged in an amended long form information with
murder in violation of General Statutes § 53a-54a and
carrying a revolver without a permit in violation of §
29-35.
"A
jury trial began on September 29, 2013, before the court,
Mullarkey, J. The [petitioner] testified as to the
following. On the night of the shooting, the [petitioner] and
Pouliot drank a bottle of champagne before they left home for
downtown Hartford at about 10 p.m. While downtown, the
[petitioner] and Pouliot each consumed approximately four to
five alcoholic beverages. The [petitioner] stated that when
he went to downtown Hartford, he regularly carried a revolver
due to incidents that had taken place there previously. The
[petitioner] did not have a permit to carry a revolver. At
some point while at various clubs in Hartford, the
[petitioner] and Pouliot began to argue about the attention
that the [petitioner] was paying to other women. Later that
evening, the [petitioner] and Pouliot drove home, where the
[petitioner] took the gun from the car and brought it
upstairs. In their shared bedroom, the [petitioner] and
Pouliot continued to argue with escalating intensity. At some
point, the [petitioner] pushed Pouliot onto the bed, placed
his left hand around her neck, and held his gun to her neck
with his right hand. The [petitioner] stated that he pulled
out his gun to calm [Pouliot] down. With his left hand still
around Pouliot's neck, the gun discharged and the bullet
entered Pouliot's neck and exited, severing a finger on
the [petitioner's] left hand.
"According
to the [petitioner], after shooting Pouliot, he held her for
a few minutes as she gasped for breath. The [petitioner] then
picked up the gun, put on a sweatshirt, and left the premises
without reporting the incident to anyone. The [petitioner]
walked to his mother's house, which took him
approximately forty-five minutes, during which time he did
not summon help for Pouliot or alert anyone to the shooting.
The [petitioner] testified that he never intended to shoot
the gun and did not pull the trigger intentionally. After
arriving at his mother's home, the [petitioner] told his
mother, brother, and the mother of his child what had taken
place, at which point the police were called. Matthew
Martinelli, an East Hartford firefighter paramedic, testified
that upon his arrival, it was immediately clear that Pouliot
was not breathing and, after failing to detect a heartbeat,
he determined that she was dead. . . .
"During
defense counsel's closing argument to the jury, he
stated: I suggest again that this was not intentional, and
the circumstances surrounding this, I suggest, indicate that
it wasn't intentional. I think he panicked after this
happened. He should have gotten help immediately, but did not
lawyer up, did not run, I mean, not run away, but he ran away
from the scene, but he didn't try to run, he didn't
flee the state, didn't do any of that, and told everybody
who asked what happened. Stupid, maybe reckless, definitely
stupid, in fact it's so stupid that I have trouble
getting-wrapping my mind around that it was intentional. It
was, you just-and the hammer back, carrying a weapon with the
hammer back, he had no training, you heard him testify to
that, no firearms training, obviously, because the first
thing you're taught is, you don't do that, you
don't carry a weapon with a round in the chamber, even.
"I'm
asking that you consider when you are deliberating that there
is a life that was lost and my client is responsible in some
way, there's no question about that. The question is,
responsible for what of the charges that you'll hear when
the judge reads the charge. I suggest that this was an
accident. It may have been reckless behavior, but it was not
intentional. I'm suggesting that he certainly should be
convicted on the gun and on criminally negligent homicide;
there is a life lost, but again, in my mind this just does
not appear, does not sound like an intentional
shooting." (Emphasis omitted; footnotes omitted;
internal quotation marks omitted.) State v. Leon,
159 Conn.App. 526, 528-31, 123 A.3d 136, cert. denied, 319
Conn. 949, 125 A.3d 529 (2015).
With
respect to the homicide, the court instructed the jury on the
crime of murder, and the lesser included offenses of
manslaughter in the first degree with a firearm
(intentional), manslaughter in the first degree with a
firearm (reckless indifference) and criminally negligent
homicide. Id., 531. The petitioner was found not
guilty of the murder charge, and guilty of manslaughter in
the first degree with a firearm (reckless indifference) and
carrying a revolver without a permit. Id. Following
the verdict, the court sentenced the petitioner to a total
effective term of thirty-one years imprisonment. Id.
This court affirmed the petitioner's conviction on direct
appeal.[1] Id., 527-28.
On
September 23, 2014, the self-represented petitioner commenced
the present action by filing a petition for a writ of habeas
corpus. On November 7, 2016, habeas counsel filed an amended
petition alleging the single legal claim of ineffective
assistance of trial counsel. The habeas court, Sferrazza,
J., conducted a two day trial on April 11 and 25, 2017.
On October 4, 2017, the habeas court issued a memorandum of
decision denying the petition for a writ of habeas corpus.
The
habeas court noted that in the amended petition, the
petitioner had alleged that his criminal trial counsel,
Attorneys Donald Freeman and Deron Freeman, had provided
ineffective assistance. The basis for this allegation was
Donald Freeman's concession, without the petitioner's
knowledge or consent, during closing argument, that the
petitioner bore some responsibility for the victim's
death and that the petitioner had been reckless. The court
reasoned that a lawyer's acknowledgment of the commission
of some aspect of the state's allegations does not amount
to ineffective assistance per se. Furthermore, in the absence
of exceptional circumstances, the two part test of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), applied to a claim of
ineffective assistance of counsel.
The
habeas court recognized that, in rare situations, a
petitioner is not required to demonstrate prejudice resulting
from a lawyer's deficient performance. "If the
exceptional circumstances are present, then the holding of
United States v. Cronic, 466 U.S. 648, 659, 104
S.Ct. 2039, 80 L.Ed.2d 657 (1984), controls, and a habeas
petitioner is relieved of the burden of proving that defense
counsel's concessions actually prejudiced the
petitioner."
The
habeas court determined that the Cronic exception
applies only when counsel entirely fails to function as an
advocate and does not subject the state's case to
meaningful adversarial testing. The court concluded that
Donald Freeman's actions in the present case did not come
within the scope of the Cronic exception and,
therefore, the petitioner retained "his obligation to
demonstrate defense counsel's deficient actions or
inactions prejudiced him, as set forth under the second prong
of the Strickland standard, before he can
prevail."
The
habeas court then applied the relevant legal principles to
the facts of the present case. First, it set forth the
principal issue at the petitioner's criminal trial.
"The incontrovertible evidence was that the
petitioner's action in placing a loaded pistol against
the victim's neck while engaged in a physical tussle
resulted in her fatal shooting. The disputed issue was the
petitioner's state of mind when he took that
action."
Next,
the habeas court considered the petitioner's argument
that Donald Freeman had conceded his guilt without his
consent. The court concluded that Donald Freeman had not
informed the petitioner, prior to closing argument, of his
intentions to state to the jury that the petitioner's
actions of placing a loaded and cocked handgun to the
victim's throat during a physical struggle was
"definitely stupid and reckless." (Internal
quotation marks omitted.) After reviewing the United States
Supreme Court's opinion in Florida v. Nixon, 543
U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the habeas
court concluded: "The trial advocate's duty, then,
is to communicate timely and clearly to the defendant the
reasons leading the attorney to acknowledge some
responsibility on the part of the client and the benefits
expected to accrue from that action. Counsel must consult
with a defendant and seriously consider the client's
position on the strategy before embarking on the course, but
the client's consent is not a prerequisite for such a
concession.
"To
be clear, the court determines that Attorney Donald Freeman
breached the professional duty to consult with the petitioner
and receive his input, if any, before arguing as he did . . .
. However, that determination does not conclude analysis of
the performance prong of the Strickland test. The
court must also resolve the question of whether the
petitioner has proved, by a preponderance of the evidence,
that conceding that the petitioner's reckless behavior
contributed causally to the victim's demise falls outside
of the broad spectrum of reasonable representation. Of
course, the prejudice component of the Strickland
criteria also remains to be determined." (Citation
omitted.)
Ultimately,
the court concluded that the petitioner had failed to sustain
his burden of proving deficient performance by Donald
Freeman. It also determined that the petitioner had failed to
prove prejudice, the second prong of the Strickland
test. Accordingly, the habeas court denied the petition for a
writ of habeas corpus. Upon the habeas court's granting
of the petition for certification to appeal, this appeal was
filed. Additional facts will be set forth as
necessary.[2]
I
The
petitioner first claims that his defense counsel's
conduct during closing argument of his criminal trial
violated his right to client autonomy under the sixth
amendment to the United States constitution. Specifically, he
argues that his defense counsel was constitutionally
obligated to honor his choice to defend against the criminal
charges filed by the state and was not permitted to override
the petitioner's decision. Furthermore, the petitioner
contends that this issue rises to the level of structural
error and therefore is not subject to harmless error
analysis.[3] In his reply brief, the petitioner relies
on McCoy v. Louisiana, U.S., 138 S.Ct. 1500, 200
L.Ed.2d 821 (2018), which was released by the United States
Supreme Court after he had filed his principal brief in the
present case.
The
respondent, the Commissioner of Correction, counters, inter
alia, that "[t]he petitioner's attempt to cast his
claim as one of client autonomy, rather than ineffective
assistance, is a new invention on appeal which should not be
entertained." Stated differently, the respondent argues
that this court should not review the petitioner's client
autonomy claim, as it was neither raised nor decided below,
and, instead, we should limit our analysis to the claim of
ineffective assistance of counsel, the sole issue presented
to and decided by the habeas court. We agree with the
respondent.
We
begin our discussion with the following additional facts and
detailed procedural history. The habeas petition initially
filed by the self-represented petitioner specifically set
forth a claim of ineffective assistance of
counsel.[4] In the operative pleading, the amended
petition filed by habeas trial counsel on November 7, 2016,
the petitioner alleged a single claim of ineffective
assistance of counsel.[5] In his pretrial brief, the petitioner
explained that his criminal trial counsel had employed a
tactic that deprived him of certain rights, and by doing so,
effectively denied him ...