Marshall v. Comm'r of Corr.

184 Conn.App. 709

196 A.3d 388

Charles MARSHALL

v.COMMISSIONER OF CORRECTION

AC 38861

Appellate Court of Connecticut.

Argued April 11, 2018

Officially released September 18, 2018

Gwendolyn S. Bishop, assigned counsel, Windsor Locks, for the appellant (petitioner).

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.

HARPER, J.

The 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.¹ We disagree and, accordingly, affirm the judgment of the habeas court.

The 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 Waterville 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).

Two witnesses, Kevin Chamberland and Lourdes Hernandez, separately encountered the petitioner while he was burglarizing 29 Waterville Street. Id., at 730, 33 A.3d 297. 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., at 731, 33 A.3d 297. "[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., at 721, 33 A.3d 297.

"[T]here 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., at 731, 33 A.3d 297.

The 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., at 721–22, 33 A.3d 297.

In an 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 followed.

Our 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).

"Under 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, 188 A.3d 1 (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., at 30–31, 188 A.3d 1. 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 (2008).

"With 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).

I

We 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.²

"Our 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 has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance....

"The [United States Court of Appeals for the Second Circuit] has honed this test further. Once a [petitioner] has established that there is an actual conflict, he must show that a lapse of representation ... resulted from the...