Opinion
CV134005144S
12-10-2015
Charles Marshall (Inmate #119969) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila M. Prats, J.
The petitioner filed a pro se petition for a writ of habeas corpus on December 28, 2012. The pro se petition was amended several times after the assignment of counsel. The operative complaint, the fifth amended petition, raises claims in five counts: first, the petitioner's right to due process was violated; second, the petitioner's right to effective assistance counsel was violated by an actual conflict of interest; third, the petitioner's right to effective assistance of counsel was violated; fourth, the petitioner's right to effective assistance of appellate counsel was violated; and fifth, the petitioner's right to equal protection was violated. The respondent's return denies the petitioner's material allegations and raises defenses to each claim. The petitioner filed a reply that is responsive to the respondent's defenses.
The parties appeared before the court on July 28 and 29, 2015, for a trial on the merits. Both parties entered documents, mostly consisting of transcripts, appellate materials and copies of court records, into evidence. Additionally, the court received testimony from the petitioner and his former defense counsel, Attorney Dennis P. Harrigan. Both parties filed post-trial briefs.
For the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
FACTUAL FINDINGS
The petitioner was the defendant in several different criminal cases in the judicial district of Waterbury. In docket number CR07-363203 (" assault case"), the petitioner was charged in a substitute information with one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(2), one count burglary in the second degree in violation of General Statutes § 53a-102(a)(2), and one count of assault in the first degree in violation of General Statutes § 53a-59(a)(1). The petitioner was also charged in an amended Part B information with being a persistent serious felony offender in violation of General Statutes § 53a-40(c). In docket number CR08-368369, the petitioner was charged in a substitute information with one count of burglary in the second degree in violation of General Statutes § 53a-102(a)(2). The petitioner was also charged in an amended Part B information with being a persistent serious felony offender in violation of General Statutes § 53a-40(c). After the state successfully sought the consolidation of these two dockets, the petitioner waived his right to a jury trial and opted to have the consolidated matters tried to the court.
The consolidated cases were tried to the court, Schuman, J., who determined that the petitioner had not acted in self-defense and convicted the petitioner on all counts. The court also found the petitioner guilty of two separately charged counts of violation of probation and revoked his probation. The petitioner entered guilty pleas to the two charges of being a persistent serious felony offender. The court ordered a presentence investigation (PSI) report and continued the matter for sentencing. On March 19, 2010, the court sentenced the petitioner to a total effective sentence of sixty-two and one-half years of incarceration.
The petitioner appealed from the judgments of conviction. On appeal, the petitioner " contend[ed] that: (1) there was insufficient evidence (a) to establish that he was guilty of assault because the state failed to disprove his claim of self-defense, (b) to convict him of burglary in the first degree for the burglary that occurred at 103 Waterville Street, and (c) to establish that he was the individual who committed the burglaries at 29 and 103 Waterville Street; and (2) the trial court abused its discretion in finding that he violated his probation." State v. Marshall, 132 Conn.App. 718, 720-21, 33 A.3d 297 (2011), cert. denied, 303 Conn. 933, 36 A.3d 693 (2012). The Appellate Court affirmed the judgments of conviction. Id., 721.
The Appellate Court's decision summarized " [t]he following facts, as found by the court, [as] relevant to the disposition of the [petitioner's] appeals. 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. Luis 'Tito' Infante, the son of the landlord of 103 Waterville Street, chased the [petitioner] from the premises with a baseball bat. Tito, however, did not swing the bat at the [petitioner] during the chase. While in flight from the burglary, the [petitioner] hit Tito in the head with the tire iron, causing severe injury." (Footnote renumbered.) Id., 721-22.
The landlord of 103 Waterville Street had two sons who are both named Luis Infante. The younger son is known by the nickname Tito. Therefore, the younger son will be referred to interchangeably as Tito or the victim."
In addressing the petitioner's first claim (i.e., insufficiency of evidence to establish that he was guilty of assault because the state failed to disprove self-defense), the Appellate Court summarized the following additional facts: " Brian Levin testified that at approximately 1:45 p.m. on the afternoon of July 26, 2007, he heard a loud crashing sound, 'like somebody hitting against a garbage can.' Levin went outside and saw a young Hispanic male and an older black male, whom he later identified in a photographic array as the [petitioner], running past his driveway. The Hispanic male was yelling at the [petitioner], and the [petitioner] was running with a crowbar in his hand. Levin noted that the [petitioner] and the Hispanic male were approximately two and one-half houses away from him, and the [petitioner], 'look[ed] back and seen that the Hispanic male was getting too close to him and he turned around and popped him in the back of the head with the crowbar.' The [petitioner] hit the Hispanic male once, after which he fell to the ground, and the [petitioner] then ran away. Levin claimed that the Hispanic male neither hit the [petitioner] with the baseball bat nor swung the bat.
" Jamal Trammell testified that on July 26, 2007, he saw a black male, whom Trammell later identified in a photographic array as the [petitioner], and a Hispanic male run past him on Waterville Street. The Hispanic male was running after the [petitioner], yelling that he was going to 'f' him up. Trammell believed that he was approximately 80 to 100 yards, or five to seven houses away from the two males at that point. Trammell testified that the Hispanic male swung the bat at the [petitioner] before the [petitioner] hit the victim. Trammell did not see the [petitioner] holding the tire iron. Trammell approached the Hispanic male, who was lying on the ground, and noticed that the young man was bleeding from a hole in his head approximately the size of a quarter. He noticed a crowbar on the ground a few feet away from the victim.
" The Waterbury police interviewed the [petitioner] on July 26, 2007, after he waived his Miranda rights. The [petitioner] provided a written statement to the police pertaining to the burglary and assault at 103 Waterville Street. The [petitioner's] written statement, which was admitted into evidence, provides in relevant part: 'Today I broke into a house on the third floor. I was able to get in through a locked back stairway door and through the unlocked back door of the apartment. When I got inside, I got into a locked room. The room was like a storage room that had stuff that I could pawn to get some money for heroin. While I was in the apartment, a Puerto Rican guy saw me. I went out the back door and down the back stairs. I went and hid in an open garage that was behind the house. I was hiding behind a car in the garage when a different Puerto Rican guy found me hiding there. The guy had a baseball bat and I ran away. While I was trying to run away, he hit me in the back with the bat. I lost my balance and fell, but I was able to keep running without being hurt to stop. I had a metal pipe with me and I ran with it in my hand. I ran down the street and the Puerto Rican guy was chasing me. I started walking after a little bit and the Puerto Rican guy was walking behind me. Then the Puerto Rican guy started running after me again. I started to run for a little while, but I got tired and stopped. The Puerto Rican guy ran up to me and I hit him in the head with the pipe I had. The Puerto Rican guy fell on the ground and I dropped the pipe . . .'
" See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)."
" The [petitioner], however, gave conflicting testimony at trial. The [petitioner] testified that on July 26, 2007, he went to 103 Waterville Street at approximately 1:30 p.m. because he believed the person who lived there hid heroin in the garage. The [petitioner] testified that he went inside the garage to look for drugs, and 'the little guy' came after him in the garage and hit him in the back with a baseball bat. The [petitioner] claimed he spotted a pipe on the floor in the garage, picked it up and took off running with the 'little guy' chasing after him and yelling threats. The [petitioner] testified that the victim swung the baseball bat at him during the chase but that it did not make contact. The [petitioner] claimed that he then threw the pipe at the victim, who fell to the ground, and that he then ran off. The [petitioner] acknowledged that he provided a written statement to the police and that he signed the written statement, but he claimed at trial that he did not read the statement. In regard to the burglary at 29 Waterville Street, the [petitioner] maintained that he was at home at approximately 11:30 a.m. and did not commit that offense." (Footnote renumbered.) Id., 724-27.
Additional facts will be discussed below as necessary to address the petitioner's specific claims.
DISCUSSION
The fifth amended petition asserts claims in five counts. First, that the petitioner's right to due process was violated. Second, that the petitioner's right to effective assistance of trial counsel was violated by an actual conflict of interest. Third, that the petitioner's right to the effective assistance of trial counsel was violated. Fourth, that the petitioner's right to effective assistance of appellate counsel was violated. And lastly, that the petitioner's right to equal protection was violated. The return raises defenses to each of these claims, which the petitioner has responded to in his reply.
The petitioner withdrew counts four and five, as well as portions of count three (paragraphs 34c and d). The petitioner amended the petition for the final time, with the court's permission, after the completion of the habeas trial. Although the fifth amended petition was filed to correct one or more errors in the fourth amended petition, the fifth amended petition still contains claims that were previously withdrawn. The court will treat that as a scrivener's error and disregard those previously withdrawn claims that are contained in the fifth amended petition.
I. Due Process Violation
The first count alleges that the petitioner's right to due process was violated because he was excluded from a critical stage of the proceeding, which was an in-chambers conference between counsel for the petitioner, the state and Judge Schuman on or about November 17, 2009, to discuss a potential conflict of interest of the petitioner's trial counsel because of a prior representation of one of the state's witnesses, Brian Levin. The petitioner cites to State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004), in support of this claim. The respondent avers that this claim is procedurally defaulted because the petitioner is raising this claim for the first time in this habeas corpus petition instead of with the trial court or on direct appeal. According to the petitioner's reply, he has not procedurally defaulted because he was unable to object to his exclusion from the in-chambers meeting because he was unaware the meeting was taking place. Furthermore, because there is no evidence on the record that the trial court informed the petitioner, he could not have waived his right to object to being excluded. The petitioner also relies on the deficient record as the reason why he did not raise this claim on direct appeal. Lastly, in the alternative, the petitioner alleges ineffective assistance of trial counsel, in that counsel failed to object to the petitioner's exclusion from the in-chambers conference, as the cause and prejudice for the procedural default.
" 'The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.' (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003)." Brunetti v. Commissioner of Correction, 134 Conn.App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).
Because the petitioner has pleaded ineffective assistance by trial counsel in another count, as well as alleged ineffective assistance as cause and prejudice for any procedural default, the court will address the due process claim as subsumed within the ineffective assistance of counsel claims.
The petitioner alleges the following in count three as a basis for ineffective assistance of trial counsel: failure " to object to the court's exclusion of the petitioner from an in-chambers conference to discuss a possible conflict of interest, which violated the petitioner's right to due process . . ."
This is especially appropriate in light of concerns expressed by the Second Circuit: " [In situations where a potential conflict exists, one that may ripen into an actual conflict as the trial progresses, district courts must have latitude to permit or deny a defendant's waiver of such conflict. We recognize that a trial court confronted with waiver issues is faced with an unenviable choice--no matter which way it rules--of being reversed on appeal. Hence, the trial judge is caught in a daunting dilemma between what appears to be two choices, both of which are potentially negative from its standpoint. If it agrees to allow the defendant to waive his right to conflict-free representation, and that turns out to be detrimental to the defendant at trial, the defendant may on appeal successfully claim ineffective assistance of counsel, . . . ruling the other way--not allowing the waiver--the trial court is in effect depriving defendant of counsel of his choice." United States v. Jones, 381 F.3d 114, 120-21 (2d Cir. 2004), cert. denied, 543 U.S. 1072, 125 S.Ct. 916, 160 L.Ed.2d 808 (2005), citing to Wheat v. United States, 486 U.S. 153, 161, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
II. Ineffective Assistance of Trial Counsel/Conflict of Interest
The second count of the amended petition alleges that the petitioner's right to effective assistance of counsel was violated by counsel having an actual conflict of interest. The petitioner alleges that Attorney Harrigan actively represented conflicting interests in that he represented the petitioner and had previously represented one of the state's witnesses, Brian Levin, in docket number UWY CR08-375963. The petitioner further asserts that this conflict adversely affected Attorney Harrigan's performance because it limited him in the cross-examination he conducted of Levin, specifically as to his pending criminal charges and other matters potentially affecting his credibility.
The respondent's return asserts procedural default as a defense and that the petitioner cannot pursue this claim because he affirmatively waived the conflict of interest in the underlying criminal case. As with count one, the reply asserts ineffective assistance by counsel as the cause and prejudice for the procedural default. The petitioner has also pleaded the conflict of interest claim as a factual basis for ineffective assistance of counsel in count three. As with the claim in count one, the court will address the claim in count two as subsumed within the claims in count three.
III. Ineffective Assistance of Trial Counsel
The petitioner's third and primary count alleges that Attorney Harrigan was ineffective in five ways, in that he failed to: (1) oppose consolidation of multiple dockets; (2) challenge identifications based on unduly suggestive photo arrays and their admission into evidence; and (3) object to the court's exclusion of the petitioner from the in-chambers conference to discuss a possible conflict of interest. The respondent's return avers procedural default as a defense to the last of the alleged failures because the petitioner did not challenge his exclusion from the in-chambers conference on direct appeal. In his reply, the petitioner counters that his alleged ineffective assistance is sufficient cause and prejudice to overcome procedural default, as well as that he lacked sufficient knowledge and facts to previously raise the claims.
The petitioner has not previously raised a claim of ineffective assistance of trial counsel. Given that this is the first time the petitioner is litigating such a claim and that ineffective assistance of counsel itself is sufficient cause and prejudice, the court concludes that the defense of procedural default is inapplicable to the claims in count three. See, e.g., Crawford v. Commissioner of Correction, 285 Conn. 585, 600 n.8, 940 A.2d 789 (2008) (immaterial whether court directly applies standard for ineffective assistance of counsel or cause and prejudice for alleged procedural default); Brown v. Commissioner of Correction, 141 Conn.App. 251, 258, 61 A.3d 554, cert. denied, 308 Conn. 941, 66 A.3d 883 (2013) (" The intersection of the petitioner's claim of ineffective assistance of counsel with the doctrine of procedural default implicates both the 'performance and prejudice' test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the 'cause and prejudice' standard of Wainwright v. Sykes, [433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)].").
A.
The petitioner's first allegation of deficient performance is that Attorney Harrigan failed to oppose the consolidation of multiple dockets. " Under Connecticut law, regardless of whether the evidence is cross admissible, joinder is appropriate if the defendant will not suffer substantial prejudice and, in turn, be afforded a fair trial. See State v. McKenzie-Adams, 281 Conn. 486, 520, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007). In determining whether such prejudice exists, [courts] have examined '(1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial.' (Internal quotation marks omitted.) State v. Virgo, 115 Conn.App. 786, 793-94, 974 A.2d 752, cert. denied, 293 Conn. 923, 980 A.2d 914 (2009)." Farnum v. Commissioner of Correction, 118 Conn.App. 670, 676, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
On September 21, 2009, during the pretrial phase, the petitioner was canvassed by Judge Damiani about the consolidation of the two dockets for trial. Respondent's Exhibit C. The petitioner indicated to Judge Daimiani that he had discussed the consolidation with Attorney Harrigan. Id., pp. 1-3. The petitioner presented no testimony on direct examination during the habeas trial about his decision and the discussions he had with Attorney Harrigan about the consolidation of the two criminal cases for trial. However, the petitioner on cross-examination testified that Attorney Harrigan recommended consolidating the two criminal dockets because doing so would highlight the differently colored clothing described by witnesses to the two burglaries, which had occurred several hours apart at two different locations. On redirect examination the petitioner indicated that Attorney Harrigan had not discussed with him the decision to not oppose the consolidation of the two criminal dockets.
Attorney Harrigan's decision to not oppose the state's motion for consolidation was, according to his habeas testimony, based on his assessment that opposing the motion would not have been successful. Additionally, the evidence in the two criminal cases, in particular the clothing the petitioner was wearing at the time of his arrest shortly after both burglaries were committed, compared to the different clothing worn by the suspect during the burglaries, was helpful to the defense. Concerns that the violence associated with the assault charge might somehow negatively impact the other burglary case, according to Attorney Harrigan, were alleviated by the decision to have the consolidated cases tried to a judge instead of a jury.
The first burglary occurred after 11.00 a.m., July 26, 2007, at 29 Waterville Street. In her statement to the police, Lourdes Hernandez described the perpetrator as wearing a yellow shirt and jean shorts. The second burglary occurred between 1:30 and 2:00 p.m. on the same day at 103 Waterville Street. Brian Levin reported to the police that the perpetrator, whose flight eventually culminated in the assault upon Luis A. Infante, was wearing a black tank top and blue jeans. The petitioner was arrested several hours later that same day.
Attorney Harrigan used the different clothing descriptions during the trial. Petitioner's Exhibit 1 (Transcript, November 16, 2009), p. 42 (Kevin Chamberland on cross-examination describing the petitioner as wearing gray sweater or sweatshirt and baggy pants); p. 94-96 (Lourdes Hernandez on cross-examination describing the petitioner as wearing a yellow t-shirt with stripes and dark pants. Petitioner's Exhibit 2 (Transcript, November 17, 2009), p. 119 (on cross-examination Luis T. Infante describes petitioner as wearing a black t-shirt and blue jeans).
The court finds that Attorney Harrigan's decision to not oppose the state's motion to consolidate was reasonable and founded on reasonable strategic grounds. Therefore, the decision is precisely the type of strategic decision that is entitled to a large measure of deference in post-conviction review, conducted with the benefit of hindsight, in particular when there is no evidence that the decision was part of an unreasonable trial strategy. See, e.g., Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851(2002) (" [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ."). Consequently, and based upon the foregoing, the court concludes that the petitioner has failed to show that Attorney Harrigan was ineffective for failing to oppose consolidation of the two dockets.
B.
The second basis for ineffective assistance by Attorney Harrigan is that he failed to challenge and prevent the admission into evidence the identifications because they were unduly suggestive photo arrays. More specifically, the petitioner claims that Attorney Harrigan rendered deficient performance by not objecting to the admission of state's exhibits 10, 13, 20 and 42 because the petitioner was depicted in those arrays as the only individual wearing a striped shirt, when identifying witnesses had all previously described the suspect as wearing such clothing.
Only exhibit 20, the photo identification by Lourdes Hernandez, a witness to the 29 Waterville Street incident, was entered into evidence during the habeas trial. Petitioner's Exhibit 12. A review of the criminal trial transcripts shows that state's exhibit 10 is the photo identification by Kevin Chamberland, a witness to the 29 Waterville Street incident. Petitioner's Exhibit 1 (Transcript, November 16, 2009), p. 37. State's exhibit 13 is the photo identification by Luis T. Infante. Petitioner's Exhibit 2 (Transcript, November 17, 2009), pp. 98-99. State's exhibit 42 is the photo identification by Miguel Rios, a witness to the 103 Waterville Street incident. Petitioner's Exhibit 2 (Transcript, November 17, 2009), pp. 37-38.
On direct appeal, the petitioner raised a claim " that there was insufficient evidence that he was the individual who committed the burglaries at 29 and 103 Waterville Street." State v. Marshall, supra, 132 Conn.App. 734. The petitioner further " argue[d] that the cumulative force of the evidence failed to demonstrate beyond a reasonable doubt that he perpetrated the burglaries due to the conflicting descriptions of the suspect and because he was not found with the screwdriver allegedly used in the burglaries." Id.
The Appellate Court's discussion continues as follows: " Various witnesses provided conflicting statements concerning what the suspect was wearing. Chamberland described the suspect as wearing a sweater or sweatshirt and baggy pants, Hernandez described the suspect as wearing a yellow striped shirt and dark pants, Rios described the suspect as wearing a black short sleeve shirt and jeans and Luis Infante described the suspect as wearing dark clothes. Each of these witnesses, however, identified the [petitioner] in a photographic array at the police station on the day of the burglary as the individual who burglarized 29 Waterville Street and 103 Waterville Street.
" Furthermore, the [petitioner] was apprehended shortly after the assault had occurred, and he was wearing clothes that matched the description given by both Rios and Luis Infante. The [petitioner] also admitted in his written statement that he had broken into the third floor at 103 Waterville Street. On the basis of this evidence, the court reasonably found that the [petitioner] was the individual who committed the burglary at 103 Waterville Street.
The petitioner on cross-examination during the criminal trial acknowledged that he entered the garage of 103 Waterville Street with the intent to steal. Petitioner's Exhibit 4 (Transcript, November 23, 2009), pp. 65-66.
" Although Chamberland and Hernandez' description of the suspect's clothing varies from what the [petitioner] was wearing when apprehended, there was a time period in which the [petitioner] is unaccounted for after the burglary at 29 Waterville Street. It is reasonable to infer that the [petitioner] wore different clothing to each house on that day. Furthermore, the [petitioner] was identified by both Chamberland and Hernandez as the individual who burglarized 29 Waterville Street. Moreover, the damage to the premises of 29 Waterville Street was consistent with the damage to 103 Waterville Street, and the [petitioner] admitted to breaking into the third floor of 103 Waterville Street, and was spotted with a screwdriver that morning. Although the [petitioner] did not have a screwdriver on his person when he was apprehended, there is enough evidence for the court to find that the [petitioner] was the individual who committed the burglaries at issue. On the basis of [its] review of the record, [the Appellate Court] conclude[d] that the evidence was legally sufficient to support the court's finding that the [petitioner] was the individual who committed the burglaries at 29 Waterville Street and 103 Waterville Street." Id., 734-36.
The petitioner now asserts, in light of the foregoing, that Attorney Harrigan was ineffective for failing to challenge and prevent admission of the identifications. The only two witnesses who presented testimony at the habeas trial were the petitioner, whose testimony was not helpful, and Attorney Harrigan, who acknowledged that he had concerns about the identifications based on the petitioner being identified by his shirt instead of his facial features, as well as that the police apparently indicated that the individual they suspected was included in the photo lineup. Only one of the photo identifications was entered into evidence at the habeas trial.
Attorney Harrigan filed a motion to suppress the identifications, but did not pursue it after opting for a trial to the court instead of a jury. Attorney Harrigan did not think that the motion to suppress would be granted, in large part because there were a total of six photo identifications in both criminal cases. Suppressing one photo identification would not impact the other five, especially given other considerations, such as Ms. Hernandez, one of the witnesses who identified the petitioner in a photo array where he was wearing a striped shirt, also recognizing the petitioner from having seen him several times on her street. Attorney Harrigan nevertheless attacked Ms. Hernandez's photo identification at trial while cross-examining her and thereby sought to undermine her reliability.
" In State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006), our Supreme Court determined that, '[b]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances . . . To prevail on his claim, the defendant has the burden of showing that the trial court's determinations of suggestiveness and reliability both were incorrect.' (Footnote omitted; internal quotation marks omitted.)" State v. Dakers, 155 Conn.App. 107, 112, 112 A.3d 819 (2015).
The totality of the circumstances, especially when considered in the post-conviction context of a habeas corpus claim necessitating the assessment of the reasonableness of counsel's actions (or inactions), includes the petitioner's own actions. See, e.g., Parrott v. Commissioner of Correction, 107 Conn.App. 234, 239-41, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008) (counsel's decision to not seek suppression of photo identification by the victim was reasonable in light of defendant's admission of being with the victim earlier the day of the offense, and the victim and defendant had known each other). Here, at least as to the identifications challenged in the amended habeas corpus petition, there were four individuals, one of whom had previously seen the petitioner on the street, who witnessed two different incidents and identified the petitioner in photo arrays, and the petitioner admitted committing one of the incidents.
The court concludes, based upon the foregoing, that Attorney Harrigan had a reasonable basis to conclude that a motion to suppress one or more of the photo identifications, in particular because of the striped shirt being overly suggestive, would not be granted. Furthermore, even if the petitioner had somehow proven deficient performance for failure to pursue the motion to suppress, the petitioner has failed to prove how he was prejudiced. The petitioner has not proven ineffective assistance premised on the alleged failure to challenge photo arrays state's exhibits 10, 13, 20 and 42.
C.
The petitioner's final claim of ineffective assistance by Attorney Harrigan is that he failed to object to the court's exclusion of the petitioner from an in-chambers conference to discuss a possible conflict of interest. The respondent's return asserts procedural default as an affirmative defense to this claim because the petitioner did not raise it on direct appeal. The petitioner essentially again asserts ineffective assistance of trial counsel as the cause and prejudice for the procedural default. It is well established that ineffective assistance of trial counsel, if proven, is sufficient to excuse a procedural default. See Cobham v. Commissioner of Correction, supra, 258 Conn. 40 (attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of trial and appellate procedure); Brunetti v. Commissioner of Correction, supra, 134 Conn.App. 168. The court concludes, therefore, that procedural default is inapplicable to this claim.
The petitioner's claims centers on Attorney Harrigan's prior representation of Brian Levin, an eyewitness to the assault. Levin's testimony was important to the assault, how it occurred, and the petitioner's claim of self-defense. According to the petitioner, Attorney Harrigan's prior representation was a potential or actual conflict because it may have precluded counsel from asking Levin about the still pending charges on which Attorney Harrigan had represented Levin before he represented the petitioner.
1.
This court makes the following additional factual findings. On September 20, 2007, the court appointed Attorney Harrigan to represent the petitioner in the assault case, and he filed his appearance thereafter. Respondent's Exhibit G. The arrest warrant application for the charges in the assault case was completed by the police and signed by a judge on July 26, 2007. Petitioner's Exhibit 11. The arrest warrant application identifies Levin as a witness to the assault, who cooperated with the police on the date of the assault, July 26, 2007, and provided them information about the assault and the petitioner's appearance. Id. On February 28, 2008, the court appointed Attorney Harrigan to represent the petitioner in docket number CR08-0368369, and he filed his appearance thereafter. Respondent's Exhibit G.
The arrest warrant for the petitioner's assault case contains the following in the affidavit: " That, on 07/26/2007 while Brian Levin was the Criminal Investigations Bureau he provided Detective Hayes with a sworn written statement concerning this incident. Levin stated in relevant part that while he was in his apartment, at 150 Waterville Street, he heard screaming coming from outside his house so he went out toward the front of his house to see what was happening. Levin then stated he saw a black male run past him carrying a tire iron and a Hispanic male running behind the black male with a baseball bat. Levin went on to state, 'they (meaning the Hispanic and black males) both then just stopped running, and squared off on each other. Square Off is just another word for standing face to face as if you are going to fight. I was about 20 feet away from them. The black dude then raised his right arm and swung down across the left side of the Puerto Rican dude's head, and hit him in the head with the tire iron. The Puerto Rican dude dropped the baseball bat he was holding, fell right down to the ground. He fell like a ton of bricks. He wasn't moving at all. I thought he was dead or something. The black dude dropped the tire iron beside the Puerto Rican dude's body, and then turned and ran up Waterville Street towards that one way street.'
" That, while Brian Levin was providing Detective Hayes with a statement he was afforded an opportunity [sic] to view a pre constructed photo array of eight similar looking males, after he was advised of Photo witness instruction. Detective Hayes asked Levin if he recognized anyone and if so from where. Levin told Detective Hayes that he recognized the male party in photo number eight as the black male party who struck the Puerto Rican male in the head with a tire iron. Levin circled, initialed [sic] photo number eight and signed this photo array. Photo number eight of the above mentioned photo array is a Waterbury Police Department booking photo of Charles Marshall (02/13/1967)." Petitioner's Exhibit 11.
The arrest warrant application also includes excerpts of Jamal Trammell's sworn written statement to the police: " They [i.e., the petitioner and the victim] stopped about five houses away from where I was standing and they stood facing each other. Somehow the black guy grabbed or blocked the baseball bat away from the Puerto Rican guy. The black guy then swung at the Puerto Rican guy and hit him in the head . . ." Petitioner's Exhibit 11. Thus, Trammell's testimony during the criminal trial was more helpful to the petitioner's asserted self-defense than was Trammell's statement to the police. See Petitioner's Exhibit 3 (Transcript, November 18, 2009), pp. 6, 10. Attorney Harrigan very prudently did not question Trammell on cross-examination about his testimony, which was inconsistent with his statement, that he saw the victim swing the bat at the petitioner. Levin's trial testimony, conversely, is more consistent with his statement compared to Trammell.
On November 26, 2008, Attorney Harrigan filed an appearance in State v. Brian Levin, docket number CR08-375963 (offense dates August 1, 2001), a criminal case pending in the judicial district of Waterbury. Petitioner's Exhibits 7 and 8. Levin also had two other criminal matters pending in the judicial district of Waterbury, docket numbers CR08-370730 (offense date March 30, 2007) and CR08-370731 (offense dates April 23, 2008). Petitioner's Exhibits 9 and 10. The information for docket number ending " 963" indicates that November 24, 2008, Attorney Harrigan was appointed by the court in that case, that he filed his appearance two days later, and that he also filed several routine pleadings the same day he filed his appearance. Petitioner's Exhibit 8. The information for docket number ending " 963" reflects that on January 15, 2009, Attorney Vicki Hutchinson was appointed as a special public defender and that she filed her appearance on January 20, 2009. Id. The informations for docket numbers ending " 730" and " 731" do not indicate who initially represented the petitioner; however, both informations contain an entry that indicates notice was provided to Levin that his counsel had filed motions for permission to withdraw appearance from " 730" and " 731." On March 20, 2009, the motions for permission to withdraw appearance from " 730" and " 731" were granted. On March 31, 2009, Attorney James Welcome filed appearances in both " 730" and " 731." Petitioner's Exhibits 9 and 10.
On November 17, 2009, the second day of evidence in the petitioner's criminal trial, Levin was called as a state's witness. Petitioner's Exhibit 2, p. 137. Immediately prior to his testimony, the court and the parties returned from the afternoon recess. Judge Schuman asked the prosecutor and Attorney Harrigan if either one of them wanted to raise an issue. Id., p. 133. The following discussion then occurred on the record:
ATTY. HARRIGAN: Your Honor, we discussed in chambers with yourself and also Judge Damiani of a situation that has arisen, although it wasn't aware to all parties prior to this date. But we thought it was prudent to at least make mention of it on the record.
That being the fact that the next witness to testify is Mr. Brian Levin. There was a period of time that I know he has pending cases and at one point I was appointed to represent Mr. Levin and I did have discussions with him regarding his pending cases.
Although it was learned fairly soon after my beginning to represent him that he was indeed the same Brian Levin as a witness in this case. When I became aware, I informed Mr. Levin and also informed Mr. Marshal [sic] of the situation and Mr. Levin was appointed a special public defender who has represented him from then until this period of time.
I did discuss it again with Mr. Marshall and indicated the court was going to ask him some questions regarding waiver of intentional [sic] conflict that may arise based on my brief representation of Mr. Levin. And Mr. Marshall indicates he's willing to stipulate or waive any potential conflict that may arise because of that. I really don't see one in this case but
THE COURT: As you said in chambers, Mr. Levin's cases are unrelated to the current--
ATTY. HARRIGAN: Mr. Levin's cases are unrelated to this case and it's not my intention to get into anything regarding any knowledge that I have of this case is based on my representation of Mr. Marshall.
THE COURT: May I ask your client some questions?
ATTY. HARRIGAN: Sure.
THE COURT: Mr. Marshall, I'd like to ask you some questions.
THE DEFENDANT: Yes.
THE COURT: Good afternoon, sir.
THE DEFENDANT: Good afternoon.
THE COURT: Do you feel you are thinking clearly today?
THE DEFENDANT: Yes.
THE COURT: Do you understand Mr. Harrigan's statement that he did represent the next state's witness who is currently Brian Levin for a short period of time?
THE DEFENDANT: Yes.
THE COURT: Do you know that you do have a right to an attorney who's free of conflicts of interest?
THE DEFENDANT: Yes.
THE COURT: But you, you can waive that right if you want to, do you understand that?
THE DEFENDANT: Yes.
THE COURT: And I would think that some of the considerations you would take into account are whether you want to keep your court-appointed counsel.
THE DEFENDANT: Yes.
THE COURT: And knowing that you do have a right to conflict-free counsel but that you can also waive it under some circumstances that you think might be appropriate, what would be your decision as to what to do sir?
THE DEFENDANT: I would like to waive those. I want to waive them.
THE COURT: You want to waive your right?
THE DEFENDANT: Yes.
THE COURT: Any conflict of interest that might exist?
THE DEFENDANT: Yes.
THE COURT: And do you feel you are doing so voluntarily?
THE DEFENDANT: Yes.
THE COURT: And/or is anybody forcing you to waive your right to conflict free counsel?
THE DEFENDANT: No one is threatening me.
THE COURT: Do you feel you are doing it of your own free will?
THE DEFENDANT: Yes, I am.
THE COURT: Is there anything else that counsel would like me to ask? Because I'm inclined to find Mr. Marshall's waiver to be voluntary knowing and intelligent.
ATTY. GRIFFIN: Judge, from the state's observation of the canvass and the opportunity to observe Mr. Marshall here in the courtroom, observe not only listening to his answers but obvious body language and such, it would be the state's opinion that knowing voluntary and intelligent waiver of any potential conflict of interest.
THE COURT: I will then find that the waiver is knowing voluntary and intelligent. And we can proceed.
THE DEFENDANT: Thank you.Id. 133-36.
The state then called Levin and conducted its direct examination. Id., 137-52. The direct examination can be succinctly summarized as a recitation of the events Levin observed, the circumstances surrounding his statement to the police, his description of the petitioner, and his photo and in-court identifications of the petitioner. Attorney Harrigan conducted brief cross-examination in which he questioned Levin about his ability to hear and see the events, as well as the circumstances surrounding his statement to the police and whether he saw the petitioner between the assault and the photo identification. Id., 152-56. There was very brief re-direct examination by the state that is only noteworthy because Levin indicated that the clothing the petitioner wore at the time of the assault was the same as what he was wearing in the photo array shown to Levin. Id., 156-57. Neither the state nor Attorney Harrigan asked Levin about any pending charges, although the fact that there was another criminal matter in which Attorney Harrigan had previously represented Levin was put on the record before Judge Schuman canvassed the petitioner about the potential conflict of interest.
The petitioner had experience waiving other rights. For example, on September 21, 2009, the petitioner waived his right to a jury trial. Judge Damiani canvassed the petitioner about his waiver of a jury trial and having the consolidated matters tried to a judge. Judge Damiani found the petitioner's waiver and decisions to be knowing, intelligent and voluntary. Respondent's Exhibit C (Transcript, September 21, 2009), pp. 1-3.
Judge Schuman rendered his verdicts on November 30, 2009. Petitioner's Exhibit 5, pp. 3-4. He then provided the reasoning for the verdicts. Several aspects of the reasoning are important in light of the petitioner's claims in the present habeas. First, Judge Schuman acknowledged that some of the photo identifications had suggestive aspects, but the fact that four witnesses made photo array identifications of the petitioner shortly after the crimes and also identified him in court during the criminal trial nevertheless made them very positive identifications. Id., pp. 4-5. Second, the petitioner confessed to one of the burglaries shortly after it was committed. Third, as to the petitioner's claim of self-defense, Judge Schuman did not find credible the exculpatory aspects of the petitioner's testimony because he had also denied committing the 103 Waterville Street burglary and accused the police of concocting his statement. Id., p. 9. Lastly, Judge Schuman found that Levin was the closest eye witness and was certain that he did not see the victim swing a bat before the petitioner hit him with the tire iron. Id. The other critical eyewitness, Jamal Tramell, who testified that he saw the victim swing the bat, was much further away and could not provide specifics about the bat swing. Id.
Levin said he was about two and one-half houses from where the assault occurred. Trammell, however, was about five to seven houses from that location, approximately 80 to 100 yards away, which is nearly the length of a football field. Trammell did not see the petitioner holding the tire iron.
On July 19, 2010, about eight months after the conclusion of the petitioner's criminal trial, the state filed substitute informations in all three cases pending against Levin. Petitioner's Exhibits 8, 9 and 10. Levin, represented by Attorney Hutchinson, pleaded guilty on that same date to reduced charges in all three dockets and was sentenced to a total effective sentence of seven years, suspended, with three years of probation. Attorney Geremia, the victims' guarding ad litem, and who had been involved in the ongoing negotiations, expressed opposition to the suspended sentence, but acknowledged that it was in the victims' best interest to not testify, as well as that the state would have difficulty meeting its burden of proof because of the remoteness in time between the offense dates and when the victims would testify. The victims' mother requested that the court impose a sentence of at least ten years of incarceration and also expressed great discontent with the petitioner's fully suspended sentence. The prosecutor agreed with the guardian ad litem's assessment of the state not being able to meet its burden of proof and its reluctance of compelling the victims to testify. Petitioner's Exhibit 6 (Transcript, July 19, 2010).
At the habeas trial, the petitioner testified that he was in the vestibule/garage of 103 Waterville Street and fled with the tire iron because two men approached him. Eventually one of the two men caught up to him, the petitioner and the victim squared off, and the petitioner swung the tire iron in response to a baseball bat being swung at him. The petitioner further testified that Attorney Harrigan first told him about also having represented Levin when Attorney Harrigan visited him in jail about two months prior to the criminal trial (i.e., in September 2009). According to the petitioner, Attorney Harrigan did not tell him what charges Levin faced, what charges he had represented him on, what his sentence exposure was, how that representation might affect representing the petitioner during his criminal trial, and how that representation might restrict cross-examination.
The petitioner recalled the recess and Judge Schuman asking counsel if there was anything they wanted to say. The petitioner testified that Attorney Harrigan did not meet with him between the beginning of the recess and when the trial resumed, nor was he asked to be present at the in-chambers discussion. The court's canvass, according to the petitioner, also did not make him aware of the charges Levin faced and, had he known those charges, Levin's sentence exposure and the potential restrictions Attorney Harrigan might have when questioning Levin, that he would not have waived any potential or actual conflict of interest. On cross-examination, the petitioner indicated that he believes that the information about Levin's charges and sentence exposure could have been used to impeach his testimony and attack his credibility.
Attorney Harrigan testified it was his usual practice to investigate witnesses and their backgrounds, including past convictions and pending charges, because they can be used during questioning to demonstrate bias. It was also Attorney Harrigan's usual practice to question witnesses on cross-examination regarding pending charges. According to Attorney Harrigan, he did not question Levin about his pending charges because of his prior representation of Levin. Nevertheless, Judge Schuman, the fact-finder and who would weigh the credibility of witnesses, was aware that Levin had pending cases. Attorney Harrigan believed that in addition to the in-chambers discussion with Judge Schuman about his previous representation of Levin and the potential conflict of interest, there had been a similar in-chambers discussion with Judge Damiani on an earlier date. The petitioner was not present in chambers for these discussions. According to Attorney Harrigan, he became aware of Levin and his involvement in the petitioner's case shortly after being appointed to represent the petitioner. Attorney Harrigan then filed a motion to withdraw his appearance from Levin's cases.
On cross-examination, Attorney Harrigan testified that he spoke to the petitioner about the issues pertaining to Levin upon becoming aware of them. The petitioner, according to Attorney Harrigan, did not express any concern about Attorney Harrigan's prior representation of Levin. Attorney Harrigan reiterated that he did not view there in fact being a conflict of interest caused by that prior representation and that he apprised Judge Schuman so that any concerns could be placed on the record, thereby also giving the court an opportunity to canvass the petitioner about any potential conflict of interest. Attorney Harrigan was not even sure if there was a detailed in-chambers discussion with Judge Schuman, that instead it was him just apprising the court about the fact he had briefly represented Levin in the very early stage of his cases and to put that on the record. Attorney Harrigan denied having developed any loyalty or favoritism toward Levin. Because Judge Schuman was aware that there were criminal charges pending against Levin, Attorney Harrigan did not see the need to question Levin about them when he testified. Attorney Harrigan denied that he avoided questioning Levin about his pending charges because of his prior representation and that he did not feel restricted in his cross-examination. Attorney Harrigan did not see how the petitioner's presence at any in-chambers discussion would have aided him because he explained the potential conflict to the petitioner and it was his understanding that the petitioner fully understood the situation.
2.
The petitioner alleges that Attorney Harrigan was operating under a potential or actual conflict of interest. More specifically, that Attorney Harrigan actively represented conflicting interests in that he represented the petitioner and had previously represented Brian Levin, as well as that this conflict of interest adversely affected Attorney Harrigan's performance because it limited him in the cross-examination he conducted of Levin, specifically as to his pending charges and other matters potentially affecting his credibility. The petitioner has failed to prove such a conflict of interest or ineffective assistance.
Connecticut's Rules of Professional Conduct, Rule 1.7(a) reads in relevant part, " A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one client . . . will be materially limited by the lawyer's responsibilities to . . . a former client . . ."
" It is well established that the sixth amendment to the United States constitution guarantees the right to effective assistance of counsel. 'The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment . . . guarantee[s] . . . a criminal defendant the right to effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Festo v. Luckart, 191 Conn. 622, 626, 469 A.2d 1181 (1983). Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Festo v. Luckart, supra, at 626-27, 469 A.2d 1181. This right requires that the assistance of counsel be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State v. Marion, 175 Conn. 211, 216, 397 A.2d 533 (1978). Moreover, one of the principal safeguards of this right is the rule announced by this court that [a trial] court must explore the possibility of conflict . . . when it knows or reasonably should know of a conflict . . . Festo v. Luckart, supra, at 629, 469 A.2d 1181.' (Internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 78-79, 513 A.2d 116 (1986).
" 'The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair . . . The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' (Citations omitted.) Strickland v. Washington, [ supra, 466 U.S. 685-86]. Strickland established a two-pronged test for the assessment of ineffective assistance of counsel. 'First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense.' Id., at 687, 104 S.Ct. 2052.
" Prejudice may be presumed in some sixth amendment contexts, such as the actual or constructive denial of assistance of counsel altogether or various forms of state interference with counsel's assistance. Id., at 692, 104 S.Ct. 2052. In the context set forth by the present case--that of counsel allegedly burdened by a conflict of interest--there is no presumption of prejudice per se. 'Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan [446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)].' (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. at 692, 104 S.Ct. 2052. The Second Circuit Court of Appeals has honed this test further. 'Once a defendant has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict . . . To prove a lapse of representation, a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests . . .' (Citations omitted; internal quotation marks omitted.) United States v. Stantini, 85 F.3d 9, 16 (2d Cir.1996)." State v. Vega, 259 Conn. 374, 386-87, 788 A.2d 1221 (2002).
Applying the foregoing conflict of interest standards, the court concludes that the petitioner has failed to show that Attorney Harrigan's ability to represent the petitioner was materially impaired by his prior representation of Brian Levin. Any undermining of Levin's credibility through questions eliciting the specific charges was tempered considerably, if not completely, by the fact that Judge Schuman was aware that Levin had pending charges and by all the circumstances surrounding Levin being an eyewitness to the assault. The petitioner has not demonstrated that Attorney Harrigan's prior representation of Levin, which was brief and occurred at the very initial stage of Levin's criminal cases, resulted in a significant risk that his representation of the petitioner was materially limited. The court fails to see, and the petitioner has not proven, how Judge Schuman's knowledge of the specific charges instead of Levin having pending criminal cases would have altered his credibility determinations, let alone the outcome of the criminal trial. The court concludes, therefore, that Attorney Harrigan not questioning Levin about the specific pending charges neither materially undermined the proper functioning of the adversarial process nor impacted the fairness of the trial itself. Consequently, the petitioner has not shown deficient performance by Attorney Harrigan nor, if this court assumes there was deficient performance, that he was prejudiced thereby. The claim of ineffective assistance because of a conflict of interest is denied.
3.
" The constitutional right of a criminal defendant to be personally present at all significant junctures of his prosecution is a 'fundamental tenet of criminal jurisprudence . . .' State v. Lopez, [ supra, 271 Conn. 732]. '[T]he right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant.' Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). The right of the defendant to be present has been extended, via the due process clause, beyond its origins in the confrontation clause of the sixth amendment to encompass 'situations [in which] the defendant is not actually confronting witnesses or evidence against him.' State v. Lopez, supra, 732; see also Monroe v. Kuhlman, 433 F.3d 236, 246 (2d Cir. 2006) ('[t]he [United States] Supreme Court has held that the right to be present at one's criminal trial is protected by due process in cases [in which] . . . the claimed error does not relate to the defendant's opportunity to confront witnesses or evidence'). 'In judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the [fullness] of his opportunity to defend against the charge.' (Internal quotation marks omitted.) State v. Lopez, supra, 732, quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)." State v. Bonner, 290 Conn. 468, 491-92, 964 A.2d 73 (2009).
In Bonner, the Supreme Court acknowledged that " an in camera inquiry regarding a potential conflict of interest may constitute a critical stage of a prosecution . . . it does not follow that all in-chambers discussions constitute a critical stage of the prosecution . . . Applying the test set forth in Lopez to determine whether a particular in camera proceeding qualifies as a critical stage of the prosecution is a necessarily fact intensive inquiry. Thus, it is imperative that the record reveal the scope of discussion that transpired." (Citations omitted; internal quotation marks omitted.) State v. Bonner, supra, 290 Conn. 492; see also State v. Chambers, 296 Conn. 397, 412-13, 994 A.2d 1248 (2010). Courts cannot be " left to speculate as to whether the [in camera] conversation[s] consisted of the court and counsel conducting an extensive discussion as to [the] potential conflict[s] of interest at one end of the spectrum or, at the opposite end, a brief comment to the court that there was a matter that needed to be placed on the record, or . . . dialogue that fell somewhere in between." State v. Bonner, supra, 290 Conn. 492-93.
" A determination that the defendant's absence from a critical stage of the proceedings violated his constitutional rights does not end the inquiry that a reviewing court must conduct in deciding whether to order a new trial. The United States Supreme Court has recognized that most constitutional errors can be harmless . . . The harmless error doctrine is essential to preserve the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial. In contrast, the Supreme Court has noted that there is a very limited class of cases" involving error that is 'structural, ' that is to say, error that transcends the criminal process.
" Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected . . . These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair . . . Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair." (Internal citations omitted; internal quotation marks omitted.) State v. Lopez, supra, 271 Conn. 732-34.
4.
Because the inquiry a reviewing court must conduct is highly fact specific, an overview of the facts in Lopez and one of its progeny is instructive. In Lopez, the defendant claimed that " he had been deprived of conflict-free representation at trial because his trial counsel had put himself in the position of being a material witness and that the court's inquiry into the matter should have been on the record . . .'The victim made certain statements that were inculpatory as to the defendant and that were the basis for the state's bringing the charges of which he was convicted. Prior to trial, however, the victim wrote and signed a statement recanting her previous accusations against the defendant. The victim testified that she [had done] so at the insistence of her mother and the defendant. She further testified that the defendant [had] dictated the statement to her and that she [had been] angry that she was forced to write the statement because it was untrue.
" After the victim had written a statement recanting her accusations, the victim's mother and the defendant brought her to the office of the defendant's trial counsel, attorney Christopher W. Boylan. The victim later testified that she had had a private conversation with Boylan, during which she [had] told him that her handwritten statement was the truth. The victim's statement was then typed on stationery bearing Boylan's letterhead. The victim signed the typewritten statement, and Boylan acknowledged the statement as an officer of the Superior Court. At trial, she testified that she had been forced to make the statements, which were not true . . ."
" . . . At some point during the trial, '[t]he state informed the court, outside of the defendant's presence and off the record, that [Boylan] may intend to testify at trial. The trial judge, in chambers, asked [Boylan] if he intended to testify and whether a new attorney should be obtained to represent the defendant. After consideration by [Boylan], he informed the judge that he did not intend to testify on behalf of the defendant.'
" In the absence of any record of the court's in-chambers inquiry, it is unclear precisely when the discussion took place. During oral argument before this court, however, the defendant represented with certainty that the in-chambers inquiry had taken place after jury selection, and the state did not dispute this assertion." (Emphasis in original.)
" . . . [T]he trial court concluded that no conflict existed because Boylan did not intend to testify. The court reasoned 'that it was entitled to rely on [Boylan's] assertion as an officer of the court and that it would be inappropriate to unnecessarily pry into defense strategy. Accordingly, there was no duty to conduct an inquiry on the record.' . . ." (Footnote renumbered.) Id., 728-29.
The Supreme Court in Lopez noted that " [u]nlike cases in which the existence of an in-chambers conference subsequently is put on the record in open court with the defendant present, thereby affording him the chance either to object or to waive any objection to his having been absent from that conference; United States v. Jones, [ supra, 381 F.3d 122-23]; no such opportunity in the present case [i.e., Lopez ] materialized." State v. Lopez, supra, 271 Conn. 737 n.13.
Another case in which there was structural error and the defendant was granted a new trial is State v. Sam, 98 Conn.App. 13, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). " The conflict of interest in [Sam ] involved the divergent interests of the defendant and Chandara Sam and the duty of loyalty owed to each of them by Klein. This conflict of interest was related substantially to the defendant's opportunity to defend himself because Klein's representation of him could have been hindered by the conflict. As in Lopez, this was not a situation in which the defendant would have contributed nothing or gained nothing had he been at the inquiry. The defendant was entitled to hear any representation made by Klein regarding the conflict. Had the defendant been present at the meeting, he may have been able to articulate with greater clarity his objection to having Klein continue to represent him.
" Klein, due to his continuing duty of loyalty to Chandara Sam, potentially was limited from pursuing particular plea negotiations or presenting an alibi defense on behalf of the defendant. The actual limitations on his ability to represent the defendant adequately, on the basis of the limited record before us, are unknown, a result of the fact that the hearing was conducted off the record."
" In Lopez, the trial court declined to conduct any inquiry on the record regarding the conflict of interest. State v. Lopez, supra, 271 Conn. 729. The Supreme Court, in reviewing the trial court's refusal to conduct any inquiry on the record, made the distinction between the court's conduct in that case and 'cases in which the existence of an in-chambers conference subsequently is put on the record in open court with the defendant present, thereby affording him the chance either to object or to waive any objection to his having been absent from that conference . . .' (Citation omitted.) Id., 737 n.13. The state rightfully points out that in the present case [i.e., Sam ], unlike in Lopez, the court did in fact make a statement in open court disclosing that an in camera meeting was held outside the defendant's presence. The court in the present case stated: 'After discussion with counsel and the state's attorney, and after listening to the presentation of defense counsel, I thought that under the circumstances, it would be appropriate to sever the trial of [the defendant] and Chandara Sam. And it's my understanding that we're going to proceed with the trial of [the defendant], who is represented by Mr. Klein.' We do not believe, however, that the present case constitutes a situation in which the defendant was informed adequately of the in camera meeting, thereby affording him the chance to object.
" When a defendant is made aware that a meeting was conducted in his absence, his failure to object to his right to be present may be deemed a waiver of that right. United States v. Gagnon, 470 U.S. 522, 528-29, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). A waiver can be implied from the defendant's conduct, but it always must be knowing and voluntary. United States v. Jones, 381 F.3d 114, 122 (2d Or. 2004), cert. denied, 543 U.S. 1072, 125 S.Ct. 916, 160 L.Ed.2d 808 (2005). The defendant must be made aware of 'the nature of the proceeding, not the abstract existence of the right itself.' (Emphasis added.) Cohen v. Senkowski, 290 F.3d 485, 493 (2d Cir. 2002), cert. denied, 537 U.S. 1117, 123 S.Ct. 879, 154 L.Ed.2d 794 (2003).
" We conclude that the court's statement did not constitute sufficient notice to the defendant such that we could infer a waiver of his right to be present at the in camera meeting to discuss the conflict of interest. Although the court informed the defendant that a meeting had taken place outside his presence, it stated only that a discussion took place, not that the inquiry was regarding Klein's conflict of interest. Because the defendant was not made aware of the specific nature of the proceeding, he was unable to make a knowing and voluntary waiver of his right to be present.
" Because the defendant did not waive his right to be present at the in camera inquiry into the conflict, the court was required to set forth, on the record, the contents of the meeting. The state argues that the court met its obligations in this regard, but we disagree. Although the court notified the defendant of the existence of the in camera inquiry, it never discussed on the record the contents of that meeting. The defendant never was informed of the representations made by Klein and the, prosecutor, nor was he made aware of the specific basis on which the court concluded that the conflict of interest would adequately be resolved by the severing of the codefendants' trials, appointment of new counsel only for Chandara Sam and immediate commencement of the defendant's trial, but not Chandara Sam's.
" The state argues that other factors distinguish this case from Lopez . In Lopez, the court refused to pursue any analysis on the record regarding the conflict of interest issue. State v. Lopez, supra, 271 Conn. 729. In contrast, the court in the present case, prior to the in camera meeting, informed the defendant of his right to independent counsel. In the case before us, the defendant also was present when the prosecutor articulated the particular conflict of interest about which he was concerned. Unlike in Lopez, following the in camera meeting, the court canvassed the defendant as to why he no longer wanted to be represented by Klein. These distinctions, however, do not alter our analysis of whether the defendant was deprived of his constitutional right to be present at the in camera meeting. Even though the court, to its credit, conducted the foregoing colloquies on the record, these distinctions relate to the adequacy of the court's inquiry into the conflict of interest, not to the defendant's due process right to be present at a critical stage of his prosecution . . ."
" The court's subsequent canvassing of the defendant as to why he no longer wanted to be represented by Klein was not sufficient to remedy the improper deprivation of his right to be present during the in camera meeting. When canvassed by the court, the defendant articulated three reasons why he did not want to be represented by Klein. Although the court correctly concluded that none of those reasons were legally recognizable arguments as to why Klein should not be able to represent him, had the court informed the defendant of the contents of the in camera discussion regarding the conflict, the defendant may have been able to articulate a more specific basis on which to object to the court's decision. Without any specific knowledge of the contents of the in camera inquiry, the defendant could not make an informed objection to the court's ruling on how to resolve the conflict." (Footnote omitted; footnote renumbered.) State v. Sam, supra, 98 Conn.App. 25-29.
The facts of the present matter are distinguishable from those in Lopez and Sam, in particular due to the petitioner's waiver after being canvassed by Judge Schuman. Attorney Harrigan testified that he disclosed the potential conflict to both the petitioner and Levin as soon as he became aware of it. Attorney Harrigan then withdrew from representation of Levin at an early stage in his criminal proceedings and was replaced by a special public defender, who still represented Levin at the time of the petitioner's criminal trial. After the in-chambers discussion with Judge Schuman, Attorney Harrigan indicated that he had discussed the potential conflict resulting from his prior representation of Levin before Judge Schuman canvassed the petitioner. The petitioner, according to Attorney Harrigan, was willing to stipulate or waive any potential conflict that might arise because of counsel's prior representation of Levin. Attorney Harrigan's testimony during the habeas corpus trial is consistent with the statements he made to Judge Schuman at the time of the canvass, and the court credits his testimony over that of the petitioner's, whose habeas testimony is at odds with his responses to Judge Schuman's canvass.
Another important distinction between the petitioner's case and Lopez and Sam is that the petitioner has not shown that his absence from the in-chambers discussion had " a relation, reasonably substantial, to the [fullness] of his opportunity to defend against the charge." State v. Lopez, supra, 271 Conn. 732. While it is unclear to which extent Judge Schuman was apprised or aware of the specific charges Levin faced, Judge Schuman was aware that he had pending criminal matters. Levin was an eyewitness to the assault and gave his statement to the police almost immediate after the assault occurred, and his testimony during the petitioner's criminal trial was consistent with his statement to the police. It is more than highly speculative how much Levin's eyewitness testimony would have been undermined by the fact that he had pending charges, especially given that Jamal Trammell was further away from the scene of the assault and that Levin had a better view of the assault.
Furthermore, Lopez involved an attorney who potentially was a material witness in his client's own criminal trial and who would have presented testimony that was highly relevant to the complainant's credibility. In Sam, two defendants with diverging and conflicting interests were represented by the same attorney. Contrary to Lopez and Sam, here the potential for a conflict was comparatively minimal, arguably even non-existent, in light of all the facts and circumstances, which include Attorney Harrigan's brief and early involvement in Levin's criminal cases, as disclosed by Attorney Harrigan to the petitioner, and which the petitioner affirmatively waived as a potential conflict of interest. The credible evidence presented during the habeas trial shows that the petitioner was adequately advised of the in-chambers discussion and his waiver was knowing and intelligent. The court fails to see how the petitioner's presence at the in-chambers discussion with counsel and Judge Schuman would have led to him contributing or gaining something from being there.
Lastly, the court notes that the credibility or bias of Levin, the cornerstone of the petitioner's claim, is not called into question as much as the petitioner suggests. Contrary to a jailhouse informant who presents testimony about statements or a confession made by a defendant to the informant, where the informant's credibility is critical, Levin was an eyewitness to the assault, which occurred in close physical proximity to where he observed the petitioner assault the victim. Levin gave his statement to the police shortly after the assault, and his criminal trial testimony does not deviate from the statement in any significant way. Although the offense dates for all of Levin's charges occurred both before and after the date of the petitioner's assault offense, Levin was not charged until 2008, the year after the petitioner was charged. Attorney Harrigan's involvement in the petitioner's cases predates his involvement in Levin's cases and, after finding out that Levin was a witness in the petitioner's assault case, withdrew from representation at a very early stage in Levin's criminal cases. Also, Levin eventually resolved his criminal cases via a plea agreement that inured to his benefit because of the state's difficulty in proving the charges, rather than as a way to reward him for his testimony in the petitioner's criminal trial. The court finds, in light of all the facts and circumstances, that Levin's credibility would not have been undermined in any material or significant way had he been questioned more specifically about his pending charges.
Based upon all the foregoing, the court concludes that the petitioner has not shown that his absence from the in-chambers discussion resulted in a failure to have him contribute or gain something that would have benefitted his criminal matter, whether to defend against the charges or to support his claim of self-defense. Thus, the petitioner was not precluded from being at a critical stage of his criminal case or prosecution. State v. Bonner, supra, 290 Conn. 492; State v. Lopez, supra, 271 Conn. 732. The petitioner has not proven that Attorney Harrigan was deficient for failing to object to the court's exclusion of the petitioner from the in-chambers conference. Nor has the petitioner demonstrated, if there were such deficient performance, that he was prejudiced or that there was a structural error warranting a new trial. Consequently, the petitioner's claim of ineffective assistance of trial counsel is denied.
CONCLUSION
Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.