Marshall v. Commissioner of Correction , 184 Conn. App. 709 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CHARLES MARSHALL v. COMMISSIONER
OF CORRECTION
(AC 38861)
Sheldon, Bright and Harper, Js.
Syllabus
The petitioner, who had been convicted of the crimes of burglary in the
second degree, burglary in the first degree and assault in the first degree,
and of violation of probation, sought a writ of habeas corpus, claiming
that his trial counsel rendered ineffective assistance. The habeas court
rendered judgment denying the habeas petition, from which the peti-
tioner, on the granting of certification, appealed to this court. Held:
1. The habeas court properly determined that the petitioner’s trial counsel
did not provide ineffective assistance due to an actual conflict of interest
as a result of his prior representation of a witness in an unrelated
criminal case: the petitioner failed to demonstrate that his trial counsel
had actively represented a conflicting interest and that it adversely
affected his trial counsel’s performance, as the petitioner did not produce
any evidence that his trial counsel received confidential information
during his representation of the witness that would have affected the
petitioner’s defense or limited trial counsel’s ability to effectively cross-
examine the witness, and a mere theoretical division of loyalties was
not enough to establish a conflict of interest; moreover, even if trial
counsel had confidential information, that did not adversely affect his
performance because the information necessary to cross-examine the
witness as to his pending criminal charges was available as a matter of
public record to trial counsel, who was not precluded from questioning
the witness about those pending charges; furthermore, given that the
witness’ testimony at the petitioner’s criminal trial was substantially
similar to the statement he had given to the police shortly after wit-
nessing the assault, and that the petitioner’s own written statement to
the police demonstrated that he did not act in self-defense, there was
a sound tactical reason for trial counsel not to cross-examine the witness
with the pending charges.
2. The petitioner’s claim that his trial counsel rendered ineffective assistance
in failing to object to the trial court’s exclusion of the petitioner from
participating in an in-chambers conference concerning counsel’s alleged
conflict of interest was not reviewable; on the basis of trial counsel’s
testimony at the habeas trial that he recalled an in-chambers conference
about the potential conflict of interest but was not sure if a detailed
discussion with the trial judge had occurred, and the insufficient record,
this court was unable to determine the scope of the discussion that
transpired during the in-chambers conference, which precluded review
of the claim.
3. The habeas court properly determined that the petitioner’s trial counsel
did not provide ineffective assistance by failing to move to suppress a
witness’ identification of the petitioner from a photographic array, which
the petitioner claimed was unduly suggestive because he was the only
person wearing a striped shirt in the array and the witness previously
had told the police that the perpetrator was wearing a striped shirt; the
habeas court properly determined that trial counsel had a reasonable
basis to conclude that a motion to suppress one or more of the photo-
graphic identifications would not have been granted given that there
were a total of six photographic identifications against the petitioner,
and the petitioner failed to demonstrate that his trial counsel’s perfor-
mance was deficient or how he was prejudiced in light of the fact that
he was positively identified by five other witnesses.
4. The habeas court properly determined that the petitioner’s trial counsel
did not provide ineffective assistance in failing to challenge the consoli-
dation of the petitioner’s two criminal cases for trial; that court con-
cluded that trial counsel’s decision to not oppose the state’s motion to
consolidate was reasonable and founded on reasonable strategic
grounds, and although the petitioner claimed that because his charges
stemming from one burglary included a violent crime, the consolidation
of his trial on those charges with the charges arising from a second
burglary not involving any violent crime caused him undue prejudice,
that claim was based on speculation and was insufficient to overcome
the strong presumption of correctness afforded to the strategic decision
made by trial counsel.
Argued April 11—officially released September 18, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Prats, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Gwendolyn S. Bishop, assigned counsel, for the
appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney and Eva Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Charles Marshall, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court erroneously
determined that his trial counsel did not provide ineffec-
tive assistance by (1) having an actual conflict of inter-
est as a result of his prior representation of a witness
in an unrelated criminal case; (2) failing to object to
the trial court’s exclusion of the petitioner from partici-
pation in an in-chambers conference; (3) failing to move
to suppress one witness’ identification of him from a
photographic array; and (4) failing to challenge the con-
solidation of his two criminal cases for trial.1 We dis-
agree and, accordingly, affirm the judgment of the
habeas court.
The following facts and procedural history, as sum-
marized by this court in the petitioner’s direct appeal,
are relevant: ‘‘On the morning of July 26, 2007, the
[petitioner] entered the premises located at 29 Water-
ville 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 [peti-
tioner] also was armed with a tire iron, a dangerous
instrument, during the commission of both of the bur-
glaries.’’ State v. Marshall, 132 Conn. App. 718, 721, 33
A.3d 297 (2011), cert. denied, 303 Conn. 933, 36 A.3d
693 (2012).
Two witnesses, Kevin Chamberland and Lourdes Her-
nandez, separately encountered the petitioner while he
was burglarizing 29 Waterville Street. Id., 730. Cham-
berland escorted the petitioner out of the second floor
landing at approximately 10:30 a.m.; Hernandez found
the petitioner in her second floor living room at approxi-
mately 11:20 a.m. Id. Another witness, Miguel Rios, con-
fronted the petitioner in his third floor apartment at
103 Waterville Street at approximately 1 p.m. and
informed the landlord of the burglary. Id., 731. ‘‘[The
victim], the son of the landlord of 103 Waterville Street,
chased the [petitioner] from the premises with a base-
ball bat. [The victim], however, did not swing the bat
at the [petitioner] during the chase. While in flight from
the burglary, the [petitioner] hit [the victim] in the head
with the tire iron, causing severe injury.’’ (Footnote
omitted.) Id., 721.
‘‘[T]here was evidence that officers found the [peti-
tioner] . . . on the front porch of a nearby house
breathing heavily and sweating profusely. Six wit-
nesses; Chamberland, Hernandez, Rios, [the victim],
[Brian] Levin and [Jamal] Trammell; viewed photo-
graphic arrays of possible suspects. Each of these wit-
nesses positively identified the [petitioner].’’ Id., 731.
The petitioner waived his right to a jury trial and
subsequently was convicted of two counts of burglary
in the second degree in violation of General Statutes
(Rev. to 2007) § 53a-102 (a) (2), two counts of burglary
in the first degree in violation of General Statutes (Rev.
to 2007) § 53a-101 (a) (1) and (a) (2), assault in the first
degree in violation of General Statutes § 53a-59 (a) (1),
and two counts of violation of probation, resulting in
a sentence of sixty-two and one-half years of incarcera-
tion. This court affirmed the judgment. Id., 721–22.
In an amended petition for a writ of habeas corpus
dated September 4, 2015, the petitioner asserted, inter
alia, that his trial counsel, Attorney Dennis Harrigan,
provided ineffective assistance on the basis of (1) an
actual conflict of interest due to his prior representation
of Brian Levin, a state’s witness, in an unrelated criminal
matter, (2) failing to object to the petitioner’s exclusion
from an in-chambers conference to discuss the possible
conflict of interest, (3) failing to move to suppress a
witness’ identification of him from a photographic
array, and (4) failing to object to the consolidation of
his two criminal cases for trial. Following a trial, the
habeas court denied the petition but granted the petition
for certification to appeal. This appeal followed.
Our standard of review for the habeas court’s findings
of fact and conclusions of law on a claim of ineffective
assistance of counsel is well established. ‘‘In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
David P. v. Commissioner of Correction, 167 Conn.
App. 455, 468, 143 A.3d 1158, cert. denied, 323 Conn.
921, 150 A.3d 1150 (2016).
‘‘Under the sixth amendment to the United States
constitution, a criminal defendant is guaranteed the
right to the effective assistance of counsel.’’ Skakel v.
Commissioner of Correction, 329 Conn. 1, 29, A.3d
(2018). ‘‘To determine whether a defendant is enti-
tled to a new trial due to a breakdown in the adversarial
process caused by counsel’s inadequate representation,
we apply the familiar two part test adopted by the court
in Strickland [v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984)]. A convicted defen-
dant’s claim that counsel’s assistance was so defective
as to require reversal of a conviction . . . has two com-
ponents. First, the defendant must show that counsel’s
performance was deficient. This requires [a] showing
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed the defendant
by the [s]ixth [a]mendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires [a] showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable. . . . The
sixth amendment, therefore, does not guarantee perfect
representation, only a reasonably competent attorney.
. . . Representation is constitutionally ineffective only
if it so undermined the proper functioning of the advers-
arial process that the defendant was denied a fair trial.’’
(Citation omitted; internal quotation marks omitted.)
Id., 30–31. It also is well settled that a reviewing court
can find against a petitioner on either Strickland prong,
whichever is easier. Small v. Commissioner of Correc-
tion, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008).
‘‘With respect to the actual prejudice prong, [t]he
habeas petitioner must show not merely that the errors
at . . . trial created the possibility of prejudice, but
that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . Such a showing of pervasive actual
prejudice can hardly be thought to constitute anything
other than a showing that the [petitioner] was denied
fundamental fairness at trial.’’ (Emphasis in original;
internal quotation marks omitted.) Wilcox v. Commis-
sioner of Correction, 162 Conn. App. 730, 741, 129 A.3d
796 (2016).
I
We first address the petitioner’s claim that Harrigan
rendered ineffective assistance on the basis of an actual
conflict of interest. The gravamen of the petitioner’s
claim is that Harrigan previously represented Levin in
an unrelated criminal matter prior to the petitioner’s
trial. According to the petitioner, this representation
resulted in an actual conflict of interest, which, had
the petitioner known, he would not have waived, but
instead would have sought to avoid by requesting the
appointment of different counsel. Due to this alleged
conflict, the petitioner claims that (1) Harrigan failed
to impeach Levin with his pending criminal charges
during cross-examination and (2) because he was not
advised that Harrigan would not impeach Levin with
his pending criminal charges on cross-examination, the
petitioner did not knowingly, intelligently, and volunta-
rily waive the conflict of interest despite having been
canvassed by the court.2
‘‘Our Supreme Court has established the proof
requirements where a habeas corpus petitioner claims
ineffective assistance of counsel because of a claimed
conflict of interest. Where . . . the defendant claims
that his counsel was burdened by an actual conflict of
interest . . . the defendant need not establish actual
prejudice. . . . Where there is an actual conflict of
interest, prejudice is presumed because counsel [has]
breach[ed] the duty of loyalty, perhaps the most basic
of counsel’s duties. Moreover, it is difficult to measure
the precise effect on the defense of representation cor-
rupted by conflicting interests. . . . In a case of a
claimed conflict of interest, therefore, in order to estab-
lish a violation of the sixth amendment the defendant
has a two-pronged task. He must establish (1) that coun-
sel actively represented conflicting interests and (2)
that an actual conflict of interest adversely affected his
lawyer’s performance. . . .
‘‘The [United States Court of Appeals for the Second
Circuit] has honed this test further. Once a [petitioner]
has established that there is an actual conflict, he must
show that a lapse of representation . . . resulted from
the conflict. . . . To prove a lapse of representation,
a [petitioner] 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. . . .
‘‘An actual conflict of interest is more than a theoreti-
cal conflict. The United States Supreme Court has cau-
tioned that the possibility of conflict is insufficient to
impugn a criminal conviction. . . . A conflict is merely
a potential conflict of interest if the interests of the
defendant may place the attorney under inconsistent
duties at some time in the future. . . . To demonstrate
an actual conflict of interest, the petitioner must be
able to point to specific instances in the record which
suggest impairment or compromise of his interests for
the benefit of another party. . . . A mere theoretical
division of loyalties is not enough. . . . If a petitioner
fails to meet that standard, for example, where only
a potential conflict of interest has been established,
prejudice will not be presumed, and the familiar Strick-
land prongs will apply.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Burgos-
Torres v. Commissioner of Correction, 142 Conn. App.
627, 634–35, 64 A.3d 1259, cert. denied, 309 Conn. 909,
68 A.3d 663 (2013); see also Walker v. Commissioner
of Correction, 176 Conn. App. 843, 852, 171 A.3d 525
(2017); Santiago v. Commissioner of Correction, 87
Conn. App. 568, 584–85, 867 A.2d 70, cert. denied, 273
Conn. 930, 873 A.2d 997 (2005).
Furthermore, as a general duty to former clients, rule
1.9 (c) of the Rules of Professional Conduct states in
relevant part: ‘‘A lawyer who has formerly represented
a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not
thereafter: (1) use information relating to the represen-
tation to the disadvantage of the former client except
as these Rules would permit or require with respect to
a client, or when the information has become generally
known; or (2) reveal information relating to the repre-
sentation except as these Rules would permit or require
with respect to a client.’’ (Emphasis added.)
The following additional facts and procedural history
are relevant to our consideration of this claim. On Octo-
ber 18, 2007, Harrigan filed an appearance in the peti-
tioner’s criminal case for the burglary and assault at
103 Waterville Street, and on February 28, 2008, was
appointed as counsel in his criminal case for the bur-
glary at 29 Waterville Street. Approximately nine
months later, on November 26, 2008, Harrigan filed an
appearance for Levin in three unrelated criminal cases.3
Less than four months later, thereafter, on March 6,
2009, he filed a motion to withdraw as counsel in Levin’s
cases, which the court granted on March 20, 2009. Levin
testified as an eyewitness in the petitioner’s trial on
November 17, 2009. In sum, Harrigan’s representation of
the petitioner and Levin overlapped for approximately
four months.
At the petitioner’s criminal trial on November 17,
2009, Levin, an eyewitness to the assault, testified that
he saw a young Hispanic male, carrying a baseball bat,
chasing an older black male, whom he later identified
in a photographic array as the petitioner, as they ran
past his driveway. Levin stated that as the Hispanic
male got close to the petitioner, the petitioner hit the
Hispanic male once with a tire iron causing him to fall
to the ground. Levin testified that he did not see the
Hispanic male hit the petitioner with the baseball bat
or swing the bat.4 State v. Marshall, supra, 132 Conn.
App. 724–25. Our review of the record reveals that Lev-
in’s testimony at the petitioner’s November 17, 2009
criminal trial is substantially similar to the statement
that he gave to the police shortly after witnessing the
assault on July 26, 2007. We note that his police state-
ment was given prior to his arrest on his own criminal
charges in May, 2008. See footnote 3 of this opinion.
At the habeas trial, in response to the respondent
Commissioner of Correction’s question as to whether
Harrigan felt that there was a conflict at the time of
the petitioner’s trial due to his past representation of
Levin, Harrigan testified: ‘‘No. . . . I think I repre-
sented Mr. Levin probably three months. The case that
. . . I had was basically paired to his other cases that
[another public defender] had. We were kind of tagging
along. So there really wasn’t a lot of things going on
with the case while I represented him other than getting
pretrials and [the other public defender] trying to work
out his situation. When I realized that he was a witness
in [the petitioner’s] case, I made the motion to with-
draw. So I really didn’t have a lot of contact with Mr.
Levin.’’
Nevertheless, the petitioner claims that Harrigan’s
conflict of interest adversely affected his representation
of the petitioner because he failed to introduce evidence
of Levin’s pending criminal charges during cross-exami-
nation. The petitioner argues that ‘‘[b]y not impeaching
Levin with his pending charges, trial counsel allowed
a crippling blow to the claim of self-defense that could
have been countered.’’5
It is important to note that the petitioner’s claim of
ineffective assistance is premised on his trial counsel’s
failure to impeach Levin with his pending criminal
charges on cross-examination because of an actual con-
flict of interest. The petitioner is not claiming a violation
of the confrontation clause under the sixth amendment
to the United States constitution or a Brady6 violation.
Thus, the petitioner is required to demonstrate that
Harrigan actively represented conflicting interests and
that the actual conflict of interest adversely affected
Harrigan’s performance. Burgos-Torres v. Commis-
sioner of Correction, supra, 142 Conn. App. 634.
Both the trial court and the habeas court concluded,
and we agree, that the petitioner failed to demonstrate
that Harrigan had actively represented conflicting inter-
ests and that a conflict of interest adversely affected
Harrigan’s performance. For example, the petitioner
has not provided any evidence, at all, that Harrigan
received confidential information during his representa-
tion of Levin, a former client, which would have affected
the petitioner’s defense or limited Harrigan’s ability to
effectively cross-examine Levin. We reiterate that a
mere theoretical division of loyalties is not enough. See
id., 635. In addition, even if Harrigan had confidential
information, maintaining Levin’s confidences did not
adversely affect Harrigan’s performance because the
information necessary to cross-examine Levin, as the
petitioner suggests, was otherwise available to Harri-
gan. Generally, pending criminal charges are a matter
of public record, and thus Harrigan was not precluded
from questioning Levin about his pending charges dur-
ing cross-examination because that information had
become generally known. See General Statutes § 1-215;
Rules of Professional Conduct 1.9; see also Commis-
sioner of Public Safety v. Freedom of Information Com-
mission, 312 Conn. 513, 93 A.3d 1142 (2014).
Furthermore, we reiterate that Levin’s testimony at the
petitioner’s criminal trial was substantially similar to
the statement that he gave to the police shortly after
witnessing the assault on July 26, 2007, meaning that
there was a sound tactical reason, apart from the alleged
conflict, for Harrigan not to cross-examine Levin with
the pending charges. Lastly, as this court previously
stated in his direct appeal, the petitioner’s own written
statement to the police demonstrated that he did not
act in self-defense. State v. Marshall, supra, 132 Conn.
App. 729.
II
The petitioner next claims that Harrigan provided
ineffective assistance by failing to object to the court’s
exclusion of the petitioner from participating in an in-
chambers conference discussing Harrigan’s prior repre-
sentation of Levin.7 According to the petitioner, the in-
chambers conference ‘‘was more extensive than the on-
the-record canvass,’’ and therefore, his exclusion from
the in-chambers conference violated ‘‘his right to be
present at all critical stages of the proceedings
against him.’’
Prior to Levin’s testimony on November 17, 2009, the
following exchange occurred on the record:
‘‘[Attorney Harrigan]: Your Honor, we discussed in
chambers with yourself and Judge Damiani of a situa-
tion 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 [Levin]. There was a period of time that I know he
has pending cases and at one point I was appointed to
represent [Levin] and I did have discussions with him
regarding his pending cases.
‘‘Although it was learned fairly soon after my begin-
ning to represent him that he was indeed the same
[Levin] as a witness in this case. When I became aware,
I informed [Levin] and also informed [the petitioner]
of the situation, and [Levin] was appointed a special
public defender who has represented him from then
until this period of time.
‘‘I did discuss it again with [the petitioner] and indi-
cated the court was going to ask him some questions
regarding waiver of [a potential] conflict that may arise
based on my brief representation of [Levin]. And [the
petitioner] 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, [Levin’s] cases
are unrelated to the current—
‘‘[Attorney Harrigan]: [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 [the petitioner].’’
Following this colloquy, the court canvassed the peti-
tioner for a waiver on the conflict of interest.
A fundamental tenet of criminal jurisprudence is that
a criminal defendant has a constitutional right to be
present at all critical stages of his or her prosecution.
State v. Walker, 147 Conn. App. 1, 13, 82 A.3d 630 (2013),
aff’d, 319 Conn. 668, 126 A.3d 1087 (2015). ‘‘[A]n in
camera inquiry regarding a potential conflict of interest
may constitute a critical stage of a prosecution at which
. . . a defendant has a constitutional right to be pre-
sent. . . . Nevertheless, it does not follow that all in-
chambers discussions constitute a critical stage of the
prosecution. In State v. Lopez, [271 Conn. 724, 859 A.2d
898 (2004)], our Supreme Court stated that [i]n 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, reason-
ably substantial, to the fullness of his opportunity to
defend against the charge. . . . It further noted that a
defendant may be afforded the right either to object or
to waive an objection to his absence from a conference
held in chambers if the existence of such a conference
subsequently is placed on the record. . . . Applying
the test set forth in Lopez to determine whether a partic-
ular 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;
emphasis in original; internal quotation marks omitted.)
Id., 14.
Importantly, ‘‘[w]hen we are left to speculate as to
whether the [in camera] conversation[s] consisted of
the [trial] 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 . . . we cannot deter-
mine the extent to which a fair and just hearing would
have been thwarted by the defendant’s absence or
whether his presence has a reasonably substantial rela-
tion to the fullness of his opportunity to defend against
the criminal charges.’’ (Internal quotation marks omit-
ted.) State v. Walker, 319 Conn. 668, 677, 126 A.3d
1087 (2015).
In the present case, Harrigan recalled during the
habeas trial that an in-chambers conference with Judge
Schuman, who oversaw the petitioner’s criminal trial,
occurred regarding the potential conflict of interest
with Levin, but he was ‘‘not sure if there was a detailed
conversation with him at all other than I represented
[Levin]. [Levin] had pending cases. That was probably
it.’’ Harrigan also stated that he had a one-time meeting
about his representation of Levin with Judge Damiani.
On the basis of these statements and the insufficient
record, we are unable to determine the scope of the
discussion that transpired during the in-chambers con-
ference; accordingly, such deficiencies preclude appel-
late review. See id., 677–78; see also Lederle v. Spivey,
151 Conn. App. 813, 818, 96 A.3d 1259 (‘‘[a]s we are left
to speculate as to the existence and nature of these
alleged in-chambers discussions, we decline to review
the defendant’s claim’’), cert. denied, 314 Conn. 932,
102 A.3d 84 (2014).
III
The petitioner also claims that Harrigan provided
ineffective assistance by failing to move to suppress
the identification of the petitioner from a photographic
array by Lourdes Hernandez, a witness to the 29 Water-
ville Street burglary. Specifically, he claims that the
photographic array shown to Hernandez was unreliable
and unduly suggestive because he was the only person
wearing a striped shirt in the array and Hernandez had
previously told the police that the perpetrator was wear-
ing a yellow striped shirt at the scene of the crime.
‘‘To prevail on a motion to suppress a pretrial identifi-
cation, a defendant must prevail on a two-pronged
inquiry. [F]irst, it must be determined whether the iden-
tification procedure was unnecessarily suggestive; and
second, if it is found to have been so, it must be deter-
mined whether the identification was nevertheless reli-
able based on an examination of the totality of the
circumstances. . . . An identification procedure is
unnecessarily suggestive only if it gives rise to a very
substantial likelihood of irreparable misidentification.
. . . The defendant bears the burden of proving both
that the identification procedures were unnecessarily
suggestive and that the resulting identification was
unreliable.’’ (Internal quotation marks omitted.) Velasco
v. Commissioner of Correction, 119 Conn. App. 164,
170–71, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994
A.2d 1289 (2010).
The habeas court ruled as follows in its memorandum
of decision: ‘‘Harrigan did not think that the motion to
suppress would be granted, in large part because there
were a total of six [photographic] identifications in both
criminal cases. Suppressing one [photographic] identifi-
cation would not impact the other five, especially given
other considerations, such as . . . Hernandez . . .
also recognizing the petitioner from having seen him
several times on her street.’’ The court concluded that
‘‘Harrigan had a reasonable basis to conclude that a
motion to suppress one or more of the [photographic]
identifications, in particular because of the striped shirt
being overly suggestive, would not [have been]
granted.’’ We agree with the habeas court’s determina-
tion. The petitioner has failed to demonstrate that his
counsel’s performance was deficient. Moreover, he also
has failed to demonstrate how he was prejudiced, given
the fact that the petitioner was positively identified by
five other witnesses; see State v. Marshall, supra, 132
Conn. App. 731; accordingly, the petitioner is unable to
satisfy either Strickland prong.
IV
Lastly, the petitioner claims that Harrigan provided
ineffective assistance by failing to challenge the joinder
for trial of his two criminal cases stemming from the
burglaries at 29 Waterville Street and 103 Waterville
Street. The petitioner hypothesizes that because his
criminal charges stemming from the burglary at 103
Waterville Street included a violent crime, i.e., assault
in the first degree, the consolidation of his trial on those
charges with the trial of all charges arising from the
burglary at 29 Waterville Street, which did not involve
any violent crime, caused him undue prejudice. The
petitioner contends that ‘‘[h]ad trial counsel opposed
consolidation of the charges against the petitioner,
there is a reasonable likelihood that the matters would
have been tried separately,’’ and, as a result, ‘‘the out-
come of the petitioner’s criminal trials would have been
more favorable to [him].’’
‘‘[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Santos v. Commissioner of Correction, 151
Conn. App. 776, 782–83, 96 A.3d 616 (2014). Further-
more, ‘‘[a]s a general rule, a habeas petitioner will be
able to demonstrate that trial counsel’s decisions were
objectively unreasonable only if there [was] no . . .
tactical justification for the course taken.’’ (Internal
quotation marks omitted.) Lynn v. Bliden, 443 F.3d 238,
247 (2d Cir. 2006), cert. denied, 549 U.S. 1257, 127 S.
Ct. 1383, 167 L. Ed. 2d 168 (2007).
During the habeas trial, in response to a question as
to why he had not opposed the consolidation, Harrigan
testified that, ‘‘given the facts, I don’t think it probably
would necessarily have been successful to oppose a
consolidation; but beyond that, I thought that the first
case—the evidence in the first case was such that it
really [did lend] itself to having both together. The cloth-
ing that [the petitioner] was wearing when he got
arrested a few hours later was totally different than
what was described by [Lourdes] Hernandez.’’ He addi-
tionally stated that, although the petitioner’s criminal
acts at 103 Waterville Street were violent, it was also
‘‘part of the reason why we decided to go with a court
trial rather than a jury [trial].’’ Harrigan further opined
that ‘‘given the facts of what [the petitioner] was wear-
ing at the time he was arrested just a few hours later
. . . I thought there would be enough reasonable doubt
created in that to basically clear him of the first [bur-
glary at 29 Waterville Street].’’
The habeas court concluded that ‘‘Harrigan’s decision
to not oppose the state’s motion to consolidate was
reasonable and founded on reasonable strategic
grounds.’’ We agree. The petitioner’s argument is noth-
ing beyond mere speculation and is insufficient ‘‘to over-
come the strong presumption of correctness afforded
to the strategic decision made by trial counsel.’’ Brown
v. Commissioner of Correction, 131 Conn. App. 497,
507, 27 A.3d 33, cert. denied, 303 Conn. 905, 31 A.3d
1181 (2011).
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his amended petition, the petitioner also alleged a violation of due
process. We note that ‘‘[a] habeas court need not . . . separately address
due process claims subsumed by claims of ineffective assistance of counsel.’’
Evans v. Commissioner of Correction, 37 Conn. App. 672, 693, 657 A.2d
1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995).
2
Because we conclude that there was no actual conflict of interest, we
do not need to address the petitioner’s waiver claim. See, e.g., Hedge v.
Commissioner of Correction, 152 Conn. App. 44, 60, 97 A.3d 45 (2014) (‘‘[i]t
would be incongruous to vacate the petitioner’s conviction due to the trial
court’s allegedly inadequate canvass and failure to inquire into a potential
conflict of interest following our conclusion that there was no conflict of
interest in this case’’), cert. denied, 321 Conn. 921, 138 A.3d 282 (2016).
3
Evidence in the record shows that although Levin’s criminal acts
occurred on or about August 1, 2001, March 30, 2007, and April 23, 2008,
he was not arrested on these charges until sometime in May, 2008. On July
19, 2010, Levin pleaded guilty under the Alford doctrine; see North Carolina
v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to two
counts of risk of injury to a child in violation of General Statutes § 53-21
(a) (1) and criminal violation of a restraining order in violation of General
Statutes § 53a-223b, and was sentenced to seven years of incarceration,
execution suspended, and three years of probation.
4
In contrast, another eyewitness to the assault, Jamal Trammell, testified
that the victim swung a baseball bat at the petitioner before the petitioner
hit him. State v. Marshall, supra, 132 Conn. App. 725. The petitioner hypothe-
sizes that had Levin’s pending criminal matters been introduced during
cross-examination, ‘‘it would have served to impeach his credibility,’’ and
‘‘[a]s a result, there is a reasonable probability that the [s]tate would have
been unable to prove, beyond a reasonable doubt, that the petitioner had
not acted in self-defense when striking the victim.’’ In other words, the
petitioner argues that the trial court could have credited Trammell’s testi-
mony that the petitioner assaulted the victim in self-defense, rather than
believing Levin’s impeached testimony that the victim did not swing at the
petitioner prior to the petitioner’s assault with the tire iron.
5
The respondent posits two arguments in response: (1) that the trial
judge already knew of Levin’s pending criminal charges, and (2) that Levin’s
pending criminal charges would not have been admissible because they did
not affect his credibility. Both arguments are misplaced.
First, as a general principle, ‘‘[i]t is well established that consideration of
extrinsic evidence is jury misconduct sufficient to violate the constitutional
right to trial by an impartial jury.’’ State v. Kamel, 115 Conn. App. 338, 344,
972 A.2d 780 (2009). In a bench trial, the court sits as a trier of fact; Knock
v. Knock, 224 Conn. 776, 793, 621 A.2d 267 (1993); therefore, the court would
not have considered its outside knowledge of the witness’ pending criminal
charges unless such evidence was admitted.
Second, we further note to clarify the misstatement by the respondent
regarding whether Levin’s pending criminal charges could have been intro-
duced to impeach his credibility. ‘‘Although evidence of an arrest without
conviction is inadmissible to attack the credibility of a witness, such evidence
is admissible where it would reasonably tend to indicate motive, interest,
bias or prejudice on the part of the witness.’’ State v. Cruz, 212 Conn. 351,
359, 562 A.2d 1071 (1989). Accordingly, because ‘‘pending criminal charges
are widely recognized for their particular relevance to a witness’ interest
in testifying . . . it is violative of the confrontation clause when a court
completely refuses to allow any inquiry for the purpose of exposing such
areas.’’ (Citations omitted; emphasis in original.) State v. Cosby, 6 Conn.
App. 164, 169–70, 504 A.2d 1071 (1986).
6
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
7
In his amended petition, the petitioner also alleges a violation of his due
process rights as a result of his exclusion from the in-chambers conference.
As explained in footnote 1 of this opinion, this allegation is subsumed into
his ineffective assistance of counsel claim because ‘‘where the petitioner’s
claim of a violation of due process is so inextricably bound up in the issue
of the effectiveness of his trial [or appellate] counsel . . . a separate claim
of a violation of the right to due process is not required.’’ (Internal quotation
marks omitted.) Evans v. Commissioner of Correction, 37 Conn. App. 672,