Leon 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 ...