Opinion
No. CV-02-0465630 S
March 29, 2005
MEMORANDUM OF DECISION ON PETITION FOR HABEAS RELIEF
The petitioner has filed for habeas corpus relief. He was the defendant in CR 98-519429. The petitioner was arrested March 25, 1998. The charges were: Assault First Degree (§ 53a-59(a); Commission of an A, B or C Felony with a Firearm (§ 53a-202b?); Criminal Possession of a Firearm (§ 53a-217); and Robbery First (§ 53a-134(a)(2).
The petitioner was found not guilty of the Assault First charge but guilty of the other three charges. He was sentenced and appealed. The Appellate Court affirmed his conviction in a per curiam decision, 67 Conn.App. 903 (2001), and his petition for certification for appeal from that court to the Supreme Court was denied, 259 Conn. 916 (2002). He has now filed a petition for habeas relief. A habeas proceeding was held before the court October 2004 at which testimony was presented and oral argument held. The petitioner filed a post-trial brief two months later and the Respondent chose not to file a brief.
The court will first review the trial testimony and those portions of the habeas transcript relevant to that discussion. At a later point the court will review separately the contents of the closing arguments in order to address a claim made as to them.
I
On March 4, 1998 Richard Middleton was a passenger in a vehicle driven by his sister Renee Middleton. The sister's boyfriend Douglas Shorter was also a passenger. They drove to Garden Street in Hartford. The two men exited and walked to a parking lot. They approached two men and asked if they were "doing anything" — they were interested in buying crack cocaine. One of the men then walked to the left side of the lot and the other man asked where the money was. The other man returned and when he did displayed a pistol he had tucked into his waist and said "run the money" — he wanted the money Middleton had in his hand. Middleton gave him the money and turned to walk away but was shot in the back of the legs as he left. Only one man had a gun. The robbery occurred at about 1:30 a.m.
Middleton identified the defendant Langston in court as the person who had the gun and who he believes shot him. Middleton stayed in the hospital three or four days and three days after that the police came and showed him eight photos; they were introduced at trial (Ex. 4) and Middleton initialed each photo and he also signed the back of the photo of the man whom he believes shot him. These photos were not introduced at the habeas proceeding. During cross examination Middleton said he had seen the defendant before, recognizing him from "prior deals." On cross defense counsel asked him if the photos were presented to him in a suggestive way and Middleton said they were not. Middleton qualified an answer he gave on direct saying he saw Langston one year before the robbery during a "deal" — there was no reference to multiple "deals." Middleton was quite definite and sure in his identification of Langston and also in his testimony that Langston was the man who had the pistol. Middleton testified that he had four or five felony convictions and two pending motor vehicle cases. He said he was on drugs at the time of the incident but not at the time of trial. During the incident he was "high" and feeling tired but not "dizzy." He testified further that his powers of perception were not affected by the drug intake. Middleton further denied that the state had offered him anything on his pending cases in light of his trial testimony.
After Middleton testified, Shorter was called as a witness by the state. Shorter said that he and Middleton approached Langston and the man Langston was with in the parking lot. There were some negotiations about drugs. At a certain point the man he knows as Langston, with a nickname of "Fluff," left to retrieve something from underneath a car bumper. He returned, asked for the money and as he and Middleton walked away he saw Langston shoot Middleton. Shorter testified that he had known Langston for "quite a while." He had seen him over 100 times and bought drugs from him over twenty times. He was shown the same photos shown to Middleton by the police, and he selected the photo of Langston as the perpetrator of the robbery.
On cross Shorter was asked if it was dark in the parking lot. He said there was light. They were standing in front of lights during the incident. There were "lights from the houses and apartment buildings that were right there over us." Shorter had prior felony convictions and was serving one year in jail at the time of trial. There was no evidence brought out of a pending case or an agreement for reduction of his sentence depending on Shorter's trial testimony.
Renee Middleton also testified. She had been using crack the night of the robbery. She said after the incident her brother pointed Langston out to her "plenty of times." She said it was dark, there were streetlights but no lights "in that alley" but then retracted the latter statement (she apparently was referring to the parking lot). She was in jail at the time of the trial and had "some" felony convictions.
An Inspector Cousins was called by the State. He went to examine the lights at 3:30 a.m. during the May 1999 trial but did not know the lighting conditions in March 1998.
The police went to Langston's house to arrest him. Police went to the front door and the back door. The police at the back door asked if Langston was home. He then apparently came out the front door and was apprehended — an officer testified he seemed shocked or surprised to see police at the front door. An officer also testified during a search of the house a potato was found with tape on it. An officer testified that after being advised of his rights Langston said this was used as a silencer for a handgun. This testimony came in without objection.
Another officer testified that when first questioned Langston denied being on Garden Street at the time of the incident but when told that people had placed him there he then said I was smoking "illy," "I don't know if I was there or not."
A Detective Bilbo also testified. He said the photo array in this case was prepared by him and a Detective Baez of the Hartford Police Department. Baez was out of the country at the time of trial. Bilbo said Langston's photo was selected. He denied suggesting to Middleton or Shorter that Langston was the individual the police were looking to arrest.
The state rested upon this evidence and the defense presented no witnesses. Closing argument was then heard.
II
As regards the habeas relief requested, the second amended petition is the operative pleading. It contains numerous allegations of ineffective assistance of counsel. Several allegations were dismissed during the habeas trial. The court reserved judgment on dismissing another but in the final analysis only four claims of ineffective assistance were briefed which the court will set forth:
(1) Trial Counsel's closing argument which suggested defendant's participation in the robbery were made without defendant's prior knowledge or permission, and without these statements, the evidence implicating defendant in the robbery was not so conclusive that a jury would have found the defendant guilty of robbery as charged.
(2) Trial counsel's failure to object to leading questions prejudiced the petitioner.
(3) Trial counsel's failure to file motions in limine to preclude the photo array and other prejudicial evidence was deficient and prejudiced the petitioner.
(4) Trial counsel's limited contact with the petitioner reflects his lack of diligence and substandard level of representation.
III.
The court will first address the second, third, and fourth claims of ineffective assistance since they lend themselves more readily to an ineffective assistance claim under the leading case of Strickland v. Washington, 466 U.S. 668 (1984). The court will first make some general observations about Strickland to set its specific discussion of the claims made in this case in context.
A
A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the federal constitution at all critical stages of a criminal prosecution. In Duperry v. Solnit, 261 Conn. 309, 335 (2002) the court, relying on Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), said that:
. . . [T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for defense counsel's deficient representation, the result of the proceeding would have been different.
The court will discuss the first requirement of an ineffective assistance claim — did the representation fall below an objective standard of reasonableness. Then the court will discuss the second aspect — given ineffective assistance was there prejudice.
(1)
The Strickland court discussed in some detail the nature of the effective assistance counsel must provide. At pages 687-88 the court said perfection is not required, what is being talked about is reasonably effective assistance. Also an "objective standard of reasonableness" must be applied. Reasonableness is to be determined by examining all of the circumstances. At page 689 Strickland went on to say that: "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"
As our court has said, it is also true that: "The issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel." Gentry v. Warden, 167 Conn. 639, 647 (1975); State v. Ralls, 167 Conn. 408, 432 (1974). On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions: "This measure of deference . . . must not be watered down into a disguised form of acquiescence." Profitt v. Waldron, supra 831 F.2d at page 1248.
(2)
The second prong of the standard used to determine if counsel was ineffective requires that the petitioner show that "there is a reasonable probability that but for defense counsel's deficient representation the result of the proceeding would have been different." Strickland at 466 U.S. page 688. Thus to show prejudice there must be a reasonable probability that because of counsel's deficient performance confidence in the outcome is undermined and also a reasonable probability that the jury would have had a reasonable doubt regarding guilt. Id., pages 694-95. See also Dupery v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1989).
(3)
In applying the tests set forth in Strickland — (1) deficient performance, and (2) whether the deficient performance prejudiced the defendant — the court made the following observation regarding these two inquiries:
[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or event to address both components of the inquiry if the defendant makes an insufficient showing on one . . . The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
In State v. Salazar, 707 p. 2d 944 (Ariz. 1985) the court, following Strickland, said that . . . "we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was ineffective, we examine whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., pages 945, 946. The court went on to hold, id., page 947, that: "As the defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice, we need not reach the performance question." Also see People v. Kipp, 18 Cal. 4th 349, 367, 956 page 2d 1169 (1998); 21a Am.Jur.2d; "Criminal Law," § 1225, page 490.
B.
The court will now try to address three of the four allegations raised in the petitioner's brief
(1) Failure to File Motion in Limine to Preclude Photo Array and Other Prejudicial Evidence
The claim is made that trial counsel was ineffective because he failed to file a motion in limine to preclude the photo array. Detective Baez prepared it and the defendant had previously assaulted him. The petitioner's brief goes on to claim Baez therefore "upon learning of the location of the robbery and shooting used the opportunity to retaliate against the petitioner for the prior assault."
This allegation was not supported by any evidence presented in the habeas proceeding nor is it even suggested as a possibility by the trial testimony. The photo array was not introduced during the habeas proceeding so the court cannot determine that it was suggestive. Detective Bilbo prepared the photo array with Baez and there was no evidence introduced that Bilbo had any motive to assemble a prejudicial photo array. There was no evidence presented to indicate that the photo array was presented in a suggestive manner either in Bilbo's testimony or Middleton's and Shorter's testimony. Even if the photo array was suggestive, which the court cannot properly address, since the array was not in evidence, the court would still have to conclude any identification was unreliable under the "totality of circumstances." State v. Mayette, 204 Conn. 571, 583 (1987). That would be quite a hurdle especially in the case of Shorter's identification. He testified he had seen Langston about 100 times before and had drug dealings with him 20 times previously and no intelligible reason was offered at trial or during the habeas proceeding as to why on earth Middleton or Shorter had any reason to falsely accuse Langston. At the time of trial Baez was out of the country according to Bilbo and there is nothing on the record even as to when and whether he would ever be available for trial. As the trial judge pointed out, even if Baez had been available and called by the defendant where can one go with that missed opportunity — a withering examination of Baez to the effect that you helped to frame the defendant because he assaulted you in the past? There would certainly be tactical reasons to avoid such a scenario.
In any event just as when a claim is made in a habeas proceeding that a certain witness should have been called, a defendant cannot simply make such a claim without offering the evidence that might have been favorable. The court concludes neither the deficient performance or prejudice test under Strickland have been met as to the claim regarding the photo array.
(2) Introduction into Evidence of Potato Silencer
A Detective Roman testified. He helped search the residence where the petitioner was arrested. He said he found a potato that had black electric tape on it. He further testified on direct by the state that the petitioner, upon questioning by another officer, said it was a silencer for a handgun. Langston had been advised of his Miranda rights. That, however, is not the problem. No motion in limine had been filed to exclude reference to this evidence and this was coupled with a failure to object to this evidence as it was being presented. It is also true that there was no evidence presented during this trial that a potato silencer was used during the robbery, seen by any victim or witness, or mentioned in any conversation during, immediately before or after the confrontation.
For over seventy years the law has been quite clear in our state that "[e]vidence as to articles found in the possession of an accused person subsequent to the time of the commission of a crime for which he is being tried is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence in the case; otherwise the law does not sanction the admission of evidence that the defendant possessed even instruments or articles adapted to the commission of other crimes." State v. Groos, 110 Conn. 403, 407 (1930).
The case of State v. Acklin, 171 Conn. 105, 114 et. seq. (1987), reaffirmed that long standing rule. Here as in Acklin, no evidence was offered at trial to show the defendant used this homemade silencer in the robbery charged or even contemplated its use. Id. at page 115. It is difficult to see what possible probative value this evidence had or what tactical strategy could have induced trial counsel not to take steps to challenge the introduction of this evidence or move to strike it. Defense counsel must be held to a standard that presupposes a knowledge of evidentiary rules operative in our state for decades. It was deficient performance under Strickland not to file a motion in limine regarding the introduction of this evidence or otherwise object to it.
Such a finding alone will not permit habeas relief. Under Strickland the court must examine the prejudice requirement; even if deficient performance is shown, habeas relief can be granted only if prejudice, as defined by Strickland is established.
Keeping the Strickland test for prejudice in mind the language of Acklin makes it difficult for a habeas court to render a finding of no prejudice when this type of evidence is introduced. And this is so even when, as here, there is well-nigh overwhelming evidence of guilt. At 171 Conn. p. 116, the Acklin court said the following: "The court erred in admitting the masks and ropes into evidence and despite the otherwise overwhelming evidence of guilt . . . the error cannot be considered harmless." Acklin cited State v. Ferraro, 160 Conn. 42, 45 (1970) which said, quoting from an earlier case: "Any improper evidence that may have a tendency to excite the passions, awaken the sympathy or influence the judgment of the jury, cannot be considered harmless." Id., p. 45. And mirroring the prejudice definition in Strickland, what does our court say in reflecting on the harmless error rule: . . . "The question is 'whether the claimed erroneous action of the court would have been likely to affect the result.'" State v. Ruth, 181 Conn. 187, 196 (1980); State v. Lugo, 266 Conn. 674, 694 (2003). Error that is not "harmless" would thus be likely to affect the result. This is the Strickland prejudice standard and Acklin presumes evidence such as introduced there and here is not harmless. Finally, on this point, in considering the harmful or prejudicial effect of such evidence, this court fails to see how our appellate courts would be able to conclude that the prejudicial effect is different and less when the lawyer fails to object permitting the evidence to come in as compared to the situation when the evidence is objected to but the trial judge erroneously lets it in — it's the getting in of it that causes the prejudice.
The question presents itself as to whether state court reflections on the meaning and ambit of our harmless error rule, even though it parallels the language of Strickland, should dictate the application of the federal standard of prejudice set forth in that case. But this court is aware of no federal Supreme Court case explicitly saying that the introduction of the type of evidence introduced in Acklin, Ferraro, and here does not dictate a finding of prejudice where the evidence of guilt is overwhelming. Therefore it feels constrained to find that prejudice component of Strickland has been met in light of defense counsel's deficient performance as to this aspect of the case and habeas relief should be granted on this ground alone.
(3) Trial Counsel Failed to Object to Leading Questions, Thereby Prejudicing the Petitioner
Strickland is apparently relied upon for this claim.
The only examples of leading questions referred to in petitioner's brief are cited at page 12 where portions of the transcript are quoted from:
"i. Transcript dated May 18, 1999, Page 24, Line 11 'Okay. Approximately three days after you got out of the hospital, did some Hartford police officers come to visit you?' (Asked of Richard Middleton).
ii. Id., Page 56, Line 15 'All right. Now on March 4th of 1998, did you go to Garden Street with your girlfriend's brother, Richard Middleton and your girlfriend, Renee Middleton?' (Asked of Shorter).
iii. Transcript dated May 19, 1999, Page 144, Line 10 the Court admonishes '. . . there seems to be an inordinate amount of leading questions from the prosecution. And I just ask the prosecution to just keep that point in mind that the questions ought not to be as leading as they are coming in.'
iv. Id., Page 191 Weybosset Street, Line 15 'Did he utter any words to you when he came out of the front door? Was he saying anything like, I'm surrendering or I give up or anything? (Asked of Officer Rosario).
THE COURT: I don't think we ought to lead him.'"
The court must confine its discussion only to the examples given in the petitioner's brief. It would be improper for the court and unfair to the Respondent to accept an invitation from counsel for the petitioner to search through the trial transcript to search for other leading questions that might reflect deficient performance resulting in prejudice. It is petitioner's task to bring to the court's attention that evidence which he believes is relevant to his habeas claim.
Certainly leading questions can be objected to by counsel and are not permitted on direct examination except in circumstances not presented here. But it is also true that very often counsel who has the right to make such an objection will not do so — the evidence may be coming in anyway. The questioning may concern a preliminary matter. Often objecting to these types of questions can antagonize the jury or give the impression that defense counsel is grasping at any straw to prevent the trial from moving along to what will be in all likelihood a guilty verdict.
Turning to the issues presented in petitioner's brief, the petitioner objects to a question as to whether three days after a witness got out of the hospital the police came to visit him? There was no dispute at trial that the police made such a visit, the three-day factor is of no particular importance and failure to object did not remove an otherwise difficult or insurmountable barrier the state would have had in getting in the evidence without the use of a leading question.
The same could be said of the question as to whether Shorter went to Garden Street with Renee and Richard Middleton on March 4, 1998. Middleton had already testified to this before Shorter was called as a witness. Reference to the date was not critical to any contested issue at trial and in any event Dr. Grabow was to be a witness and he was evidently prepared to and did testify that he treated Middleton for gunshot wounds on March 4, 1998 which had to be the date of the alleged robbery.
Finally, petitioner has objected to the fact that an arresting officer was asked if Langston said anything as he exited the front door of the residence he was located at by the police. In response to the question, the judge told the State's Attorney: "I don't think we ought to lead him." The judge may not have been aware of what the answer was going to be. But in any event the officer said Langston said nothing; he just had a surprised demeanor on his face.
In light of the foregoing the court cannot conclude that the Strickland tests for ineffective assistance have been met. It is true that the trial court said at one point that there was an "inordinate amount of leading questions." But as noted earlier this court cannot speculate as to what questions were being referred to, thus how can it conclude there was deficient performance or prejudice under the Strickland test.
In any event the leading questions referred to in petitioner's brief do not warrant the granting of habeas relief.
(4) Counsel's Limited Contact With Petitioner Reflects His Absence of Diligence and Substandard Level of Representation
The petitioner's brief states that defense counsel never met with Langston for more than twenty-five minutes at a time and only did so in the courthouse holding area. The lawyer could not say Langston received a letter he sent Langston explaining his options. He did not employ an investigator; the lawyer said he was private counsel and the family did not provide him with funds to do so and he did not request funds for this purpose from the court.
Petitioner argues that the lawyer's rationale for not objecting to leading questions does not pass muster. Then the broad statement is made that if the defense lawyer had "proceeded with his defense more thoughtfully at every juncture, the trial would have been completely favorable to Mr. Langston."
The court will try to address these specific claims separately. As discussed previously in this opinion Strickland and state courts applying it have said that habeas courts can address the prejudice component of Strickland first. If there is a failure to show prejudice when arguendo deficiency is assumed, the court need not reach the deficient performance question. People v. Kipp, supra 18 Cal. 4th 349, 367 (1998).
(a)
It is certainly the wiser course of action to visit a client at the place where he or she is confined so that a relationship of trust and confidence can develop. But even assuming in this case short visits in the lock up established deficient performance, there is no suggestion made in petitioner's brief nor was one offered at the habeas proceeding by way of evidence that lengthier visits at a non-court setting would have produced investigative leads, witnesses, or some other evidence favorable to the petitioner. The court cannot even begun to make a Strickland analysis on the deficient performance or prejudice component unless it is shown what specific evidence or testimony would have resulted if there had not been deficient performance. Cf., U.S. ex rel. Partee v. Lane, 926 F.2d 694, 701 (7th Cir., 1991). Something must be presented at the habeas proceeding which takes the issue of prejudice out of the arena of surmise and speculation.
(b)
The same observation applies to the comment that counsel failed to hire an investigator. The question becomes how can the court from that observation conclude that "confidence in the outcome is undermined" or say that therefore there is "also a reasonable probability that the jury would have reached a different result?" The robbery occurred in the early morning hours. There was some lighting available. Shorter who was with the victim at the time of the incident said he had seen the petitioner 100 times before the alleged robbery. At the habeas proceeding, no testimony, expert or otherwise was offered to show the lighting conditions at the time of the incident were so poor so as to make any identification impossible. A petitioner cannot simply ask the court to speculate that proper investigation would have led to information supporting a finding of prejudice under Strickland. Cf. U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir., 1991) (petitioner cannot, for example, simply state testimony would have been favorable).
(c)
The court has already discussed the claim of failure to object to leading questions.
(d)
It is said the petitioner did not receive a letter sent by the lawyer explaining his options. There is apparently no claim that a plea bargain was not conveyed to the petitioner or that if it was it would have been accepted. The letter defense counsel sent was introduced into evidence but at the habeas trial there was no point by point reference to it by petitioner's counsel to indicate that, on the assumption it was not received by Langston, the lawyer did not discuss specific aspects of it in face-to-face meetings.
Even if the latter is assumed to be the claim there is no indication in petitioner's brief as to how this prejudiced petitioner. He said he was told of the plea offer at the habeas hearing. He was adamant about his innocence — see for example his objection to defense counsel's purported admission of guilt in closing argument. There is no claim made that if the letter had been received by him he would have considered a plea, or suggested new tactics to his lawyer, or questioned any observations in the letter.
Generally as regards all these issues raised by the petitioner it has been said that the strength or weakness of a case is an important factor in determining whether any particular error, assumed or established, caused prejudice. Strickland, 466 U.S. at page 696; Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir., 2003); cf. Murrell Frank, 332 F.3d 1102, 1117-18 (7th Cir., 2003). Here, in addition to the fact that the prejudice has not been indicated, it is also true that this was not a weak, but a strong case.
(5) Trial counsel's closing argument suggesting petitioner's participation in Robbery was made without petitioner's permission. Without these admissions evidence was not so conclusive that jury would have found defendant guilty.First it is necessary to examine the actual closing arguments to set the legal analysis in context. The defense argument will be reviewed along with the state's rebuttal as they bear on the claim being raised.
(a)
In the initial part of his argument defense counsel said that "it all comes down to two people Middleton and Shorter." He pointed out that both men had felony records and they were users of crack cocaine. He then said both men testified they had a clear look at Langston and the man he was with but then argued the lighting was not good, it was dark which "limits people's ability to see what is in front of them, and to recognize people." All the foregoing is consistent with the defendant's not guilty plea to all the charges against him.
Defense counsel then argued that Shorter testified he saw Mr. Langston shoot Middleton but initially told the police he only heard the shot. He conceded Middleton was shot. The following was then said by defense counsel:
"Remember, there were two people here that were involved in this, not just Mr. Langston, but his unnamed partner who might have been his partner in a drug deal or who might have taken the gun and decided, I'm going to start shooting"
Defense counsel then argued that Middleton and his sister could not see who the shooter was. He pointed out that when Langston was arrested a search of the house where he was arrested came up with a potato but no weapon.
He then said that the evidence of how Langston exited the house did not establish consciousness of guilt. He may have run out of the house but "it doesn't mean he was guilty of shooting somebody" — maybe he thought there was a warrant out for him for dealing drugs. He then discussed the facts of his arrest and exit from the house in more detail trying to show Langston did not act with consciousness of guilt.
Defense counsel then emphasized the theory that it all "comes down to Richard Middleton and Douglas Shorter." Shorter knew Langston and was going to pick the photo of someone he knew. The argument is then hard to follow but defense counsel says maybe "they" went to another place and were shot but "Mr. Langston is not the one who discharged the weapon." He said it does not make sense for Langston to get the money and then shoot Middleton. It may be concluded "that the other individual grabbed the gun and might have started shooting" — "maybe the second person was the shooter." In the course of this train of thought counsel did say let us assume there was a robbery and "I'll concede for a moment a robbery did occur." He then went on to say given this assumption maybe the second person was the shooter.
Defense counsel then argues maybe Middleton went to Garden Street "they don't have any drugs — "he goes somewhere else then he gets robbed." It might as well be Langston who shot him because the real shooter is beyond the reach of Middleton and Shorter.
Defense counsel concluded by saying there was no corroborative evidence, no gun, or statements or confessions by Langston.
Upon rebuttal the State's Attorney argued that the defense was conceding that Langston had the gun but at some point the individual he was with grabbed it and shot Middleton. She also said there was no evidence to support his, it was sheer speculation: "There is no logic or reasonableness in assuming that he handed over the gun to the other man." Defense counsel raised no objection to this argument by way of seeking to clarify that he in fact did not mean to concede Langston was in any way involved in this incident, either the shooting or the robbery. But the robbery immediately preceded the shooting so the ambit of what the state assumed defense counsel was conceding would necessarily include involvement in the robbery.
After the foregoing remarks the state made its argument more general by saying it made no sense for the defense to take the position that Middleton and/or Shorter accused an innocent man.
At the habeas hearing defense counsel was examined about the closing argument. Referring to Langston the following occurred:
"Q. Was it your intention to suggest that he had committed that robbery?
A. It was not my intention. My intention was simply to create reasonable doubt by either a suggesting that there was never a robbery or B. if there was a robbery it might have occurred somewhere else and c, even if there was a robbery at the physical location that it was described Mr. Langston had noting to do with it."
The court asked:
Q. . . . in your argument did you mean to say to the jury even if you conclude he was involved in the robbery that doesn't mean he did the assault.
A. No that was not my intention. My intention was to say even if a robbery had been committed . . .
(The court:) Q. Some rob . . . by someone.
A. Some robbery by somebody. That's . . .
(The court:) That's what you were saying
A. That's what I was trying to convey
Counsel for the respondent who was the State's Attorney who tried this case then said:
Q. "was there testimony that came out in the trial that there was another man near both Mr. Langston — near the defendant who the state alleged did this, and near the victim that could have done both the robbery and the assault?
A. (Defense counsel) Yes.
Q. And that's where you were going and trying to suggest that perhaps this other unknown individual could have done these crimes?
A. That's correct.
But it was not what counsel's intentions were that is controlling, but what he actually said. It is true that at times during his argument defense counsel did suggest that any identification of Langston by Middleton and Shorter, both drug users and felons, was suspect, that the robbery and/or shooting could have occurred somewhere else and it might as well be Langston who did the shooting, and that the lighting at the scene of the robbery on Garden Street, if it took place there, was very poor making identification impossible.
But as the review of the closing argument indicated, defense counsel explicitly said or implied at various points that Langston was involved in the robbery but not the shooting:
"Remember, there were two people here that were involved in this, not just Mr. Langston . . . but his unnamed partner . . . who might have taken the gun and decided, I'm going to start shooting."
This theme of implying guilt of the robbery but not the shooting is woven throughout the remainder of the closing argument.
The house where Langston was arrested revealed the potato but no weapon.
Langston may have run out of the house when the police came to arrest him but "it doesn't mean he was guilty of shooting somebody."
Defense counsel then suggested that maybe Middleton, his sister and Shorter went somewhere else but still "Mr. Langston is not the one who discharged the weapon." It's argued that it does not make sense for Langston to get the money and then do the shooting. It can be concluded that the other man grabbed the gun, he was the shooter. As mentioned earlier the shooting by all accounts immediately followed the robbery.
Furthermore, a cursory reading of the trial transcript indicates to the court that this Assistant State's Attorney was very able and experienced, she was obviously there during the closing argument. In rebuttal, as noted, she seized, as a good lawyer, on exactly the concession the defense was making — Langston had the gun initially but at some point the man he was with seized and shot Middleton. But the display of the gun was central to proving the robbery.
If defense counsel believed at trial as strongly as he did at the habeas proceeding that this mischaracterized his position why did he not object? The answer, it seems to the court after reading the transcript, is that is exactly the point he was trying to make — Langston was there, a robbery happened, he displayed the gun, but after Middleton turned away his companion took the same gun and shot Middleton.
The fact that in his argument defense counsel made some reference to a position denying any involvement in the shooting or robbery does not change or deflect its overall impact. All of this must be considered in light of what was presented or not presented at trial. There was not an extensive attack on the reliability of the identifications which would support an argument that Langston was not involved in any crime. Thus, no investigation or lighting expert was presented to try to show any identification was impossible or highly unlikely. The photo array was not specifically attacked as being suggestive.
One other matter must be discussed before any legal analysis of the closing argument and its effect on the request for habeas relief is made.
From the habeas proceeding it seems uncontroverted that defense counsel never informed Langston that he was going to concede his guilt to the robbery and try to avoid conviction for assault which was based on the shooting. Langston denied that he was told any such thing. Respondent and defense counsel can hardly be heard to disagree with this since they deny that any concession was made. Defense counsel also testified that Langston was uncooperative, refused to consider any plea bargain, maintained his innocence and just wanted a trial.
(b)
From an examination of the closing arguments one of two factual deductions or propositions can be deduced (1) the defense lawyer conceded his client was guilty of one of the serious charges against him at closing argument without having informed him that this would be the tactic adopted or (2) the argument of defense counsel was confused on this point, at times he appeared to make the foregoing concession at other times not.
The point is that even under this second view of the defense closing argument it is still true that at points defense counsel conceded his client's involvement in a crime. As noted the experienced Assistant State's Attorney who tried the case picked upon that theme in her rebuttal. Thus, it cannot be said that there was only a weak implication of guilt in the defense closing argument, cf. Messer v. Kemp, 760 F.2d 1080, 1091 (CA 11, 1985).
In any event whether the first or second view of the closing argument is taken, the question presented is whether defense counsel's performance was deficient under Strickland.
It is a basic element of our criminal justice system and the rights afforded even the most unpopular defendant, that one accused of crime has a right to plead not guilty and have guilt or innocence decided by a jury of his or her peers. This right is guaranteed by the Sixth Amendment and applies to the states through the Fourteenth Amendment to the United States Constitution, Duncan v. Louisiana, 391 U.S. 145, 148, 149 (1968), Albright v. Oliver, 510 U.S. 266, 273 (1994), Harris v. U.S., 536 U.S. 545, 549 (2002). No lawyer's decision can deprive a defendant of these rights and these rights cannot be waived by defense counsel, Brookhand v. Janis, 384 U.S. 1, 5-8 (1966). It is basic constitutional law that: "The question of a waiver of a federally guaranteed constitutional right is, of course, federal question controlled by federal law. There is a presumption against the waiver of constitutional rights . . . and for a waiver to be effective it must be clearly established that there was 'an intentional relinquishment or abandonment of a known right or privilege,'" Brookhart v. Fairis, 384 U.S. 1 at page 4, cf. Boykin v. Alabama, 395 U.S. 238, 242 (1969). There is nothing in this record that indicates the petitioner contemplated waiving or in fact waived these rights. That being the case a closing argument by defense counsel that effectively admits the client's guilt to a crime to which the client has pleaded innocent without the client's waiver or consent is necessarily deficient performance under the standard set forth in Strickland v. Washington, supra, see pre- Strickland cases of Francis v. Spraggins, 720 F.2d 1190, 1193 N.7 (CA 11, 1983), Young v. Zant, 677 F.2d 792, 797 (CA 11, 1982).
Even where, as may possibly be said here, counsel's closing argument presents a mixed picture, at one point admitting guilt, at another treating it as an assumption for purposes of argument, that should not allow an escape from this conclusion of deficient performance. A defendant has an explicit right to maintain innocence undiluted in the trier of fact's eyes by equivocal arguments. Since a fundamental federal right is involved a deficient performance under Strickland cannot be avoided, at least in this court's opinion, by the ordinary do not judge by hindsight observations in Strickland — or ruminations about whether given the evidence it was a good strategic choice to concede guilt on one of the charges. The point is that any such position is conclusory and ignores the basic right since a defendant has a right to plead not guilty and ask a jury to decide his or her fate no matter how strong the evidence on any one or all of the charges. Can a lawyer at the close of the state's evidence without the client's approval, say we admit to count one not count two without the client's approval no matter how sensible this decision might be tactically? The answer has to be no. If that is so, it cannot be acceptable, if the same thing is done a short time later during closing argument. The court concludes defense counsel's performance in this regard was deficient.
(c)
If the foregoing issue were not difficult enough, there is another problem that has been even more difficult for the court to decide. Given the finding of deficient performance for the reasons stated, can a finding of prejudice be made under that separate component of the Strickland test? Here is the difficulty — the evidence in this case for the state was very convincing. Applying the Strickland test it could certainly be argued that there was no reasonable probability that the type of deficient performance discussed here could undermine the court's confidence in the outcome of the trial or create the likelihood that absent the deficiency the jury would have a reasonable doubt as to guilt.
Despite all this the court is constrained to find that the ordinary prejudice analysis does not warrant the denial of habeas relief, deficient performance having been found for the reasons stated. The court relies on U.S. v. Cronic, 466 U.S. 648 (1984) decided the same day as Strickland v. Washington, supra and on the recent case of Florida v. Nixon, 125 S.Ct. 551 ?? (103-391) (2004).
In Cronic, the court said at 460 U.S. page 659:
There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been "denied the right of effective cross-examination" which "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Id., at 318 (citing Smith v. Illinois, 390 U.S. 129, 131 (1968), and Brookhart v. Janis, 384 U.S. 1, 3 (1966)).
Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U.S. 45 (1932), was such a case.
It is true that fitting this discussion into the analytical cubbyhole created by Cronic may not be all together satisfactory since Cronic still talks in terms of prejudice and presumed prejudice which is geared to evaluations of likely outcomes of guilt or innocence in particular cases.
But Florida v. Nixon, supra appears to get to the heart of the matter by conducting an analysis based on recognition that a fundamental right was involved in a case where defense counsel conceded the defendant's guilt. There the defendant was charged with a capital crime where the evidence of guilt was overwhelming. Defense counsel conceded guilt at the guilt phase of the trial thereby hoping to preserve credibility for the penalty phase of the trial where life or death was at issue. The Florida Supreme Court reversed the conviction citing Boykin v. Alabama, supra and US. v. Cronic, supra. It said that defense counsel's statements to the jury were the "functional equivalent of guilty plea" and therefore what was required was the defendant client's "affirmative, explicit acceptance of" the lawyer's strategy of conceding guilt. The Federal Supreme Court reversed the Florida Supreme Court. Justice Ginsberg, of course recognized that "a defendant . . . has the ultimate authority to determine 'whether to plead guilty, waive a jury testify in his or her own behalf, or take an appeal.'" Jones v. Barnes, 463 U.S. 745, 751 (1983).
But then the court said very interesting things of importance to this case. It ruled that Florida erred in applying the Cronic "presumption of prejudice rule blanketly to the situation before it and reversing and remanding the case for a new trial. It held Florida was incorrect in making its decision turn on its observation (a la Cronic) that "no competent, substantial evidence . . . establish(ed) that Nixon affirmatively and explicitly agreed to counsel's strategy" (i.e. admitting guilt) (emphasis in original), Nixon v. State, 857 So.2d 172, 176 (Fla., 2003).
What the Federal Supreme Court did say is that, because of the nature of death cases,
. . . "in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent. Instead if counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain." (Emphasis by this court)
The court recognized the difficulties presented to defense counsel in a two-stage capital case where the evidence of guilt is great. But under Florida v. Nixon even in that type of case defense counsel must inform the defendant of his strategy to concede guilt at the guilt phase. If the defendant agrees, there is no problem. But if he or she is just unresponsive the court decided that it will not allow such a defendant to place defense counsel in an untenable position and permit the defendant to cry foul and wax eloquent about the denial of fundamental rights after a guilty verdict with a recommendation of death is returned.
But in a non-capital case such as this one, the Supreme Court suggests merely informing a non-responsive client of a strategy to concede guilt is not enough to insulate such a course of action by defense counsel from habeas attack. In a non-capital case the Supreme Court suggested that the Cronic rubric of presumed prejudice is more likely to be applicable — that is, merely informing the defendant who remains unresponsive is not enough, an explicit waiver of the right to continue the not guilty position may have to be made by the client. Thus, the Florida v. Nixon court, before its actual holding in the capital case before it, said:
On the record thus far developed (defense counsel's) concession of Nixon's guilt does not rank as a 'failure to function in any meaningful sense as the government's adversary' (this is how court characterized Cronic earlier in opinion). Although such a concession in a run-of-the-mill trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceedings two phase structure vitally affect counsel's strategic decision.
In this case there was not only an absence of any explicit and affirmative waiver by Langston of his right to maintain his innocence throughout the trial, including closing argument segment, but there is nothing to indicate that at trial counsel even informed the defendant that during closing argument he would concede guilt as to one of the counts. Based on its previous finding of deficient performance in light of Boykin v. Alabama, supra and in light of U.S. v. Cronic, and Florida v. Nixon, observations on the prejudice component of Strickland when a fundamental right is involved the court grants the habeas petition on this additional ground.
The conviction is vacated and the petitioner is returned to court for further proceedings.
Corradino, J.
End Notes
There are several matters that must be addressed by way of end notes.
(1) There is one matter that only became relevant once Florida v. Nixon was decided but that case came out on December 13, 2004 only two days before petition's brief was filed. Assuming, that in a non-capital case defense counsel merely informs a defendant of a strategy to concede guilt in closing argument and the lawyer is met by a refusal to discuss the issue or an unresponsive attitude by the defendant — should that give defense counsel license to make such a concession? If the answer is yes, despite the dicta in Florida v. Nixon, do we have a situation here of a non-cooperative client who should have expected such a strategy? In August 1998, nine months before trial, counsel wrote the defendant at his mother's house, where he assumed he was living, explaining his options and the plea bargain offer. The defendant who was out on bond at the time testified at the habeas proceeding he did not receive the letter because he was staying at his girlfriend's house. Counsel said that in any event he discussed the contents of the letter with Mr. Langston. Counsel described Langston as generally uncooperative with him.
In that letter it says "the part A case (robbery I, etc.) will hinge on the willingness and/or ability of one or both of the alleged victims to testify against you in court and to identify you as the shooter. If the state cannot produce these witnesses or they lack sufficient credibility, the jury may decide that the state has not proven its case beyond a reasonable doubt and would vote for acquittal."
This statement besides being somewhat equivocal cannot be regarded as that type of communication of trial strategy mandated by Florida v. Nixon. The letter as written was discussing the options as to the desirability of a plea agreement. It was written many months before trial and before trial strategy as to any closing argument would have presented itself, and defense counsel testified he did not concede nor did he intend to concede guilt in his closing argument so how could it be claimed that at the time of trial or even before, the guilt concession strategy was discussed?
(2) The court found several cases dealing with this guilt concession issue but most of them precede U.S. v. Cronic, supra and all of course precede Florida v. Nixon, supra Francis v. Spragguns, 720 F.2d 1190 (CA 11, 1983); Young v. Zant, 677 F.2d 792 (CA 11, 1982); U.S. v. Simone, 931 F.2d 1186 (CA 7, 1991); Wiley v. Souders, 647 F.2d 642 (CA 6, 1981); Messer v. Kemp, 760 F.2d 1080 (CA 11, 1985); People v. Carter, 41 Ill.App.3d, 354 N.E.2d 482 (1976). Florida v. Nixon is controlling.
(3) The question arises as to how a record is established under Florida v. Nixon either that the defendant was informed of the concession of guilt strategy, if that is the test, or that there was a affirmative, explicit, and informed waiver of the right to maintain innocence. Counsel can have the defendant sign appropriate memorandums to this effect. Something can also be put on the record, ex parte in front of the trial judge or another judge. It would be difficult to conduct any such proceedings with the State's Attorney present because then he or she would learn of the defense closing argument strategy.