Opinion
CV154007109S
10-02-2019
Alain LECONTE #341059 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner, Alain Leconte, claims that both trial counsel Mark Phillips and appellate counsel Daniel Foster rendered ineffective assistance of counsel. The ineffective assistance as to trial counsel is premised on several allegations of deficient performance that all relate to the petitioner’s alleged mental illness. The claimed ineffective assistance as to appellate counsel is premised on counsel’s failure to claim on direct appeal that the trial court improperly joined the criminal cases for trial.
For the reasons set forth below, the petition is DENIED.
I. FACTUAL BACKGROUND
Alain Leconte was arrested and charged with offenses that occurred in Stamford (docket number CR09-0169016), Greenwich (docket number CR10-0172680), and Norwalk (docket number CR10-0127876). These three criminal cases were joined, over his objection, for trial purposes. The petitioner was eventually charged in a long-form information, dated August 20, 2012, with charges arising from all three cases. After trial to a jury, the petitioner was convicted on these except for two charges where the jury returned verdicts of guilty on lesser included offenses. The court, White, J., sentenced the petitioner to a total effective sentence of ninety years’ incarceration. The petitioner appealed from the judgment of conviction, which was affirmed by our Supreme Court in State v. Leconte, 320 Conn. 500, 131 A.3d 1132 (2016). The court’s decision summarizes the salient facts underlying his convictions as follows:
Between October and December 2009, the [petitioner] participated in three armed robberies, each of which resulted in criminal charges against him. The first robbery took place on October 10, 2009. The [petitioner], together with an accomplice, entered a Shell gas station and convenience store in Norwalk and demanded that the store clerk hand over the money in the cash register, which contained approximately $1, 300. He then shot the clerk in the head before fleeing with his accomplice. The clerk later died from the gunshot wound.
The second robbery took place on November 21, 2009. The [petitioner] and three accomplices drove to a Mobil gas station in Greenwich. While two of the accomplices waited in the car and the third, Teran Nelson, stood outside as a lookout, the [petitioner] entered the convenience store and ordered the clerk at gunpoint to give him the money in the cash registers. After the clerk handed over approximately $638 and several boxes of cigarettes, the [petitioner] shot him in the head and drove off with Nelson. The clerk ultimately recovered from the gunshot wound.
The third robbery occurred on December 12, 2009. The [petitioner] called and asked a friend, who also was a police informant, to give him a ride in her car. During the ride, the [petitioner] told her to stop at a certain location, where he picked up a gun, smoked marijuana, and met an accomplice, David Hackney, with whom he decided to commit a robbery. The informant then drove the [petitioner] and Hackney to a Walgreens store in Greenwich. While the two men waited in the car, the informant purchased a pair of stockings that the [petitioner] said he wanted for his mother and contacted the police by cell phone to warn of a possible robbery in Stamford. When the informant returned to the car, she drove the [petitioner] and Hackney back to Stamford and dropped them off on Vista Street. The men then walked a short distance to Adams Grocery Store. After the [petitioner] and Hackney pulled the stockings over their heads, they entered the store and the [petitioner] ordered everyone at gunpoint to get down on the floor. When the [petitioner] encountered difficulty trying to open the cash register, the store clerk offered to help. The [petitioner] then grabbed approximately $203 in cash and fled from the store with Hackney. A short time later, the police caught the [petitioner] as he was running down the street.
The [petitioner] was detained and arrested, and various individuals who had been in Adams Grocery Store during the robbery identified the [petitioner] and Hackney as the men who had just robbed the store. Police officers who had observed the men in immediate flight also identified the [petitioner], who was wearing the same clothing he had worn during the robbery. The [petitioner] then was brought to the police station, where he provided a written statement in which he confessed to his involvement in the Stamford robbery and provided details regarding the incident. The [petitioner] subsequently was charged with two counts of robbery in the first degree in connection with this robbery.
During the [petitioner’s] incarceration for the Stamford robbery, he told Anthony Simmons, a cellmate who had agreed to be a cooperating witness for the state, that he had been involved in the Norwalk and Greenwich robberies. On the basis of this information and the evidence obtained from several other persons who also were cooperating witnesses, the [petitioner] was charged with murder, felony murder and robbery in the first degree for his participation in the Norwalk robbery and with attempt to commit murder and robbery in the first degree for his participation in the Greenwich robbery.
The three cases were joined for trial on August 21, 2012, and a jury found the [petitioner] guilty as charged, except with respect to the two first degree robbery charges in the case involving the Stamford robbery. With respect to those charges, the jury found the [petitioner] guilty of two counts of the lesser included offense of robbery in the second degree because evidence had been admitted that the gun he had used in the Stamford robbery was inoperable.State v. Leconte, supra, 320 Conn. 502-05. On appeal, the petitioner claimed, in relevant part, "that he was deprived of his sixth amendment right to counsel when the trial court admitted the incriminating statements he made to Simmons regarding his participation in the Norwalk and Greenwich robberies at a time when he was represented by counsel in the case involving the Stamford robbery." (Footnote omitted.) Id., 505. Thus, he argued, his conviction for the Stamford robbery should be reversed. The court disagreed, concluding that "any presumed error was harmless beyond a reasonable doubt." Id., 507.
II. FINDINGS OF FACT
At all times relevant to the petition Attorney Mark Phillips represented the petitioner during the criminal trial proceedings, and Attorney Daniel Foster represented the petitioner on direct appeal.
On or about April 28, 2011, the trial court, Comerford, J., ordered that the petitioner be examined for his competency to stand trial pursuant to General Statutes § 54-56d. The petitioner subsequently was found competent to stand trial. Attorney Phillips filed several defense motions heard by the court, White, J., on May 17, 2012. The defense motions focused on three claims: first, that Simmons was an agent of the police and that the petitioner was "in custody" and interrogated in violation of the fifth amendment; second, that the petitioner’s sixth amendment right to counsel was violated because he had only been arrested for the Stamford robbery and his counsel in that matter was not present; and third, that the petitioner’s right to due process was violated because his statements to Simmons, allegedly an undercover police agent, were coerced. The petitioner testified in support of these claims at the May 17, 2012 hearing, but the motions were denied.
Judge White noted that the petitioner’s testimony indicated that he and Simmons had been cell mates for about four months. Simmons had, prior to the recorded conversations, unsuccessfully attempted to engage the petitioner in conversations about other crimes he may have committed. The petitioner resisted such prior attempts and, therefore, freely engaged in the recorded conversations. In support of the motion that challenged the voluntariness of his statements to Simmons, Attorney Phillips argued both orally and in a brief that he filed with the trial court that the petitioner lacked intelligence and had a history of mental health issues. The court found, however, that no evidence had been presented to support the contention that the petitioner’s statements to Simmons were involuntary or coerced.
The state presented testimony apart from the petitioner’s statements to Simmons in support of their burden of proof. The jury heard from several other witnesses to whom the petitioner allegedly confessed his involvement in the robberies and shootings, including Nicole Ingram, Taron Nelson, Emanuel Tyson and Cheik Seye. In addition, their testimony not only implicated the petitioner, but also corroborated his rendition of events. The petitioner’s statement to Simmons describing the Greenwich incident also was in conformity with the version of events testified to by the victim of that incident. Details provided by the petitioner to Simmons were corroborated by independent, impartial witnesses. Finally, the incidents were captured on surveillance videos which were shown to the jury.
Dr. Wasser, an Assistant Professor at the Yale University School of Medicine and Medical Director at the Whiting Forensic Hospital, has worked with DOC since 2014, and is board certified in forensic psychiatry. According to Dr. Wasser, who testified at the habeas trial, DOC gives inmates mental health scores with five being the highest score, and one the lowest score. A score of five means the equivalent of being in a mental hospital in the community; a score of four means intensive weekly outpatient care; and a score of three means once-a-month outpatient involvement with treatment. Correctional facilities house inmates based on various considerations, including mental health scores and treatment needs. The only correctional facilities for inmates with mental health scores of four and five are Garner and Osborn Correctional Institutions (C.I.). MacDougall-Walker C.I., another correctional facility, can accommodate inmates with mental health scores up to level three. Mental health scores can change after an evaluation by a physician or clinician (e.g., psychiatrist or advanced practice registered nurse) and, therefore, result in an inmate being transferred to a different correctional facility. Inmates have a right to be notified of a change in their mental health scores.
Dr. Wasser reviewed the petitioner’s mental health records, competency evaluation, and a report that was prepared by Dr. Eric Frazer, a mental health professional affiliated with Yale University, presumably at the request of Attorney Phillips during the pendency of the underlying criminal case. Dr. Wasser testified that in 2010-11, the petitioner was diagnosed with schizophrenia and schizo-affective disorder, both of which are serious mental illnesses. Symptoms of schizophrenia include hallucinations, delusions, paranoia, experiencing stimuli that are not present, and disorganization of thinking and/or behavior. There are two types of schizo-affective disorder: bipolar and depressive. Schizophrenia and schizo-affective disorder are treated with a combination of therapy and anti-psychotic medications. If no medications are administered, according to Dr. Wasser, then someone suffering from schizophrenia and/or schizo-affective disorder will relapse. In the petitioner’s case, he has not relapsed after the anti-psychotic medications were stopped. The petitioner in 2010-11 was also diagnosed with borderline functioning IQ, anti-social personality disorder, and post-traumatic stress disorder (PTSD). The report from Dr. Frazer concluded that the petitioner’s mood dysregulation, auditory hallucinations and additional psychiatric symptoms were secondary to his drug dependency. Dr. Frazer further concluded that a review of the petitioner’s medical records did not support a finding that the petitioner suffered from a thought disorder. Instead, the report concluded that the symptoms exhibited by the petitioner were consistent with the conclusion that the petitioner was malingering.
" ‘Malinger’ has been defined as ‘[t]o feign sickness or any physical disablement or mental lapse or derangement, especially for the purpose of escaping the performance of a task, duty, or work, or for purpose of continuing to receive disability payments. Person who consciously feigns or simulates mental or physical illness for gain. ’ (Emphasis added.) Black’s Law Dictionary (6th Ed. 1990.) Our Supreme Court has accepted a definition of ‘malingering’ as ‘the conscious manipulation of facts and details for self-serving ends. Basically lying about your condition so that people will believe [that you suffer from the feigned condition].’ (Internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 307 n. 32, 636 A.2d 351 (1994)." State v. Garcia, 81 Conn.App. 294, 302 n.4, 838 A.2d 1064 (2004).
While the review of these documents provided an informative background history, Dr. Wasser did not conduct his own evaluation of the petitioner because a present day evaluation would not be fruitful to examining the petitioner’s mental health in 2010. Dr. Wasser was not presented as an expert on the petitioner’s mental health and provided no opinion as to how the petitioner’s mental state affected the voluntariness of the statements to Simmons.
Attorney Frank Riccio, an experienced criminal defense attorney, testified as an expert witness regarding the standard of representation for defense counsel. Attorney Riccio reviewed the 2012 report prepared in support of the petitioner’s potential defense of mental disease or defect. However, Attorney Riccio did not review any of the relevant police or incident reports, and did not speak with the petitioner. According to him, an important consideration in the petitioner’s defense was to sever the different criminal cases. Attorney Phillips timely moved to sever the petitioner’s criminal cases and, although the cases were not severed, the issue was preserved for appellate review.
A second important defense consideration in the petitioner’s case was the jailhouse informant recording implicating the petitioner in the charged offenses. Attorney Riccio described the recording as very damaging to the petitioner’s defense. It was, therefore, incumbent on defense counsel to file a motion to suppress the recording, as well as determine whether the petitioner had the capacity to make the statement voluntary. Mental health issues can play a critical role in ascertaining and supporting defenses and, consequently, must be explored by defense counsel.
The petitioner testified in support of his habeas claims. According to the petitioner, he was arrested in December of 2009 in Stamford, was first held for approximately one month in the Bridgeport Correctional Center, and thereafter was transferred to Garner C.I., where he was held for about six to seven months. The petitioner was then moved from Garner C.I. to MacDougall-Walker C.I. in either June or July of 2010.
The petitioner received mental health treatment while he was at Garner C.I., where he initially saw a mental health social worker every week, was on medication, and participated in group therapy. The petitioner testified that it was more difficult to get treatment after his transfer to MacDougall-Walker C.I. and that the treatment was different. According to the petitioner, he did not receive notice that his mental health score had changed. The petitioner indicated that he did not see a social worker while he was at MacDougall-Walker C.I. Instead of meeting in private for treatment, the petitioner stated that the treatment providers wanted to talk to him on the tier or behind the door in front of others. The petitioner testified that he was bullied by other inmates because of his mental health status. The petitioner stopped taking medications while he was at MacDougall-Walker C.I. because he experienced side effects such as gynocomastia (i.e., swelling of breast tissue). However, no one told the petitioner to stop taking his medication and no one checked on him to make sure he was compliant with taking his medications. After returning to Garner C.I., the petitioner again had access to medications, which he took regularly, and also resumed regular mental health treatment.
The petitioner further testified that he was experiencing symptoms such as hearing voices when he told Anthony Simmons, his cellmate and eventual jailhouse informant, about the offenses he had committed. According to the petitioner, he was just trying to act tough with Simmons because they were from the same town.
At the habeas trial, the petitioner’s medical records entered into evidence show that he, while in DOC custody, was diagnosed with various mental health conditions. Records dated 2014 reflect that he was diagnosed with impulse control disorder and antisocial personality disorder. Another record dated 2013 shows that that petitioner was diagnosed with adjustment disorder. A mental health assessment dated 2011 indicates that the petitioner’s mental health history included schizoaffective disorder, impulse control, and anxiety. Yet another record from December of 2011 indicates that the petitioner was diagnosed with substance induced psychosis and borderline intellectual functioning.
In July 2011, a psychological evaluation concluded that the petitioner, despite his intellectual limitations, intentionally feigned impairment. This evaluation noted that the petitioner’s scores "indicated he is intentionally attempting to present himself in a negative light. His response pattern on the validity measure indicates he feigns illness on all clinical domains assessed, including affective disorders, memory deficits, neuropsychological impairment, low intelligence and psychosis, suggesting his overall cognitive abilities likely fall much higher than the demonstrated "Extremely Low" range of cognitive abilities."
The petitioner’s mental health and treatment records span several hundreds of pages and encompass years prior to 2010 and thereafter. The foregoing references to specific diagnoses, although not exhaustive, illustrate the wide range of mental health issues affecting the petitioner at various times, including the two days Simmons wore a recording device to capture the petitioner’s incriminating statements.
Neither Attorney Phillips nor Attorney Foster testified at the habeas trial. Additional facts will be discussed as necessary to address the petitioner’s specific claims.
III. LEGAL ANALYSIS
A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Thus, because "[a]n 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" (internal quotation marks omitted); Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he 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." Strickland v. Washington, supra, 686.
Two-part test. To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland. Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. 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." (Internal quotation marks and citations omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
Performance Prong. The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31 (quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
Prejudice Prong. When defense counsel’s performance is found to not be reasonable, a new trial is required only if there exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. 694. "The question, therefore, is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38 (quoting Strickland v. Washington, supra, 466 U.S. 694-95).
However, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38 (quoting Strickland v. Washington, supra, 466 U.S. 693-94). The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 466 U.S. 696.
B. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
"A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006)." Small v. Commissioner of Correction, 286 Conn. 707, 712, 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).
"Just as with a claim of ineffective assistance of trial counsel, success on a claim of ineffective assistance of appellate counsel requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances ... Although an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions ... Indeed, experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ... Moreover, a habeas court will not, with the benefit of hindsight, second guess the tactical decisions of appellate counsel ...
"After demonstrating deficient performance, the petitioner must then show prejudice by establishing that, because of the failure of his appellate counsel to raise a particular claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different ..." (Internal citations omitted; quotation marks omitted.) Saucier v. Commissioner of Correction, 139 Conn.App. 644, 651-52, 57 A.3d 399 (2012) (appellate counsel’s performance not deficient where counsel had "made his tactical decision to focus on the strongest of the petitioner’s claims on appeal ... after considering the relevant case law and whether the claim was properly preserved, and after consulting with other experienced counsel"), cert. denied, 308 Conn. 907, 61 A.3d 530 (2013).
I. Trial Counsel’s Failures Re Mental Health
In the first count of his amended petition, the petitioner alleges that Attorney Phillips rendered deficient performance in six ways that relate to his mental health. More specifically, the petitioner alleges that trial counsel failed to: (1) reasonably investigate whether he suffered from any mental illnesses when he was recorded on July 22 and 23, 2010; (2) consult with and/or hire a medical doctor to develop a defense; (3) present evidence through cross examination that he was suffering the effects of mental illness when he was recorded on July 22 and 23, 2010; (4) present direct evidence that he was suffering the effects of mental illness when he was recorded on July 22 and 23, 2010; (5) argue to the jury that his statements when he was recorded on July 22 and 23, 2010, should not have been credited due to his ongoing mental illness; and (6) move to suppress his statements made when he was recorded on July 22 and 23, 2010, on the grounds that he was not competent to make any knowing, intelligent, and voluntary statements.
Five of the six alleged deficiencies relate to the recorded statements made on July 22 and 23, 2010; one allegation more generally claims that trial counsel failed to consult with and/or hire a medical doctor to develop a defense. All of these purported deficiencies hinge on establishing that the petitioner suffered from a mental illness that would either support a defense that he should be found not guilty because of a mental disease or defect, or support suppression of the recorded statements that led to his convictions for the Norwalk and Greenwich offenses.
Although the petitioner was affected by various mental health issues while in DOC custody, these mental health issues varied over time. The evidence presented to this court fails to prove how he was impacted, if at all, by such illnesses when Simmons recorded the petitioner. As the testimony from Dr. Wasser and the DOC medical records show, the petitioner was found to be malingering, which calls into question the varying diagnoses listed in the petitioner’s DOC medical records. The fact that the petitioner has not experienced a relapse when he stopped receiving medications to treat schizoaffective disorder underscores the tenuous reliability of past diagnoses. This tenuousness is further amplified by attempts to assess the petitioner’s mental health about a decade after the relevant dates at issue.
The testimonies of Dr. Wasser, Attorney Riccio, and the petitioner, as summarized above, fail to show that Attorney Phillips failed to investigate the petitioner’s mental illnesses and consult with a doctor. First, the evidence establishes that the petitioner’s mental health was explored, as demonstrated by the report of Dr. Frazer. Second, since Attorney Phillips did not testify at the habeas trial, there is no evidence affirmatively proving that Attorney Phillips made tactical or strategic decisions that were unreasonable, deficient, or below the standard of reasonably competent criminal defense counsel. More importantly, the petitioner has not proven what it is exactly that he alleges Attorney Phillips should have done and how that would have made a difference in the outcome of the suppression hearing or the jury’s verdict.
There is no evidence that the petitioner’s statements to Simmons were not knowing, intelligent, and voluntary. Cf. Taylor v. Commissioner of Correction, 284 Conn. 433, 451-52, 936 A.2d 611 (2007) ("An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense ..."), citing and quoting State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986). It is well established that counsel is presumed to have rendered effective counsel unless deficient performance is affirmatively proven. See, e.g., Sanders v. Commissioner of Correction, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004) ("It is well established that when analyzing a claim of ineffective assistance, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment"). Furthermore, the petitioner has not presented any evidence that shows how his mental health affected, if at all, the voluntariness of his statements to Simmons. Even if the court assumes for the sake of discussion that the petitioner had mental illnesses, that alone would not prove that such mental illnesses resulted in the petitioner’s statements to Simmons being coerced, involuntary, unreliable or factually untrue. The petitioner has therefore failed to rebut this strong presumption of effective assistance with evidence proving that Attorney Phillips performed deficiently.
In addition, the petitioner cannot prove that he was prejudiced by any failure of Attorney Phillips to properly put before the trial judge and the jury his mental illnesses. As recounted above, a reading of the transcript makes clear that the evidence against the petitioner was overwhelming even when removing his statements to Simmons from the equation. There were several other individuals to whom the petitioner admitted, or alluded to, his involvement in the offenses charged and corroboration of the state’s version of events was provided by independent, impartial witnesses as well as other evidence submitted to the jury. There is simply no basis from which this court can conclude that the petitioner was prejudiced.
Additionally, our Supreme Court’s review of the record led it to describe "the evidence of the [petitioner’s] guilt, even without the testimony of Simmons regarding the Norwalk and Greenwich robberies, [as] so overwhelming and compelling that any error, even if it did exist, was harmless beyond a reasonable doubt." State v. Leconte, supra, 320 Conn. 506.
Consequently, the court concludes that the petitioner has failed to prove that trial counsel was ineffective.
2. Appellate Counsel’s Failure To Raise Joinder Claim On Appeal
The second count of the amended petition alleges that Attorney Foster rendered deficient performance as appellate counsel by not asserting a claim that the trial court improperly joined the Stamford, Greenwich, and Norwalk cases. As with trial counsel, appellate counsel is presumed to have performed effectively unless affirmatively proven otherwise. The only evidence presented at the habeas trial in support of this claim is the testimony of Attorney Riccio. Attorney Riccio indicated that in cases such as the petitioner’s, which involved several different robberies, it is incumbent on defense counsel to seek severance of the different charges. Of course, Attorney Phillips did timely seek to sever the cases and objected to the joinder. The trial court’s rulings were preserved for appellate review.
Prior to 2012, "Connecticut courts recognized a clear presumption in favor of joinder and against severance ... and, therefore, absent an abuse of discretion ... [would] not second guess the considered judgment of the court as to the joinder or severance of two or more charges." (Citation omitted; internal quotation marks omitted.) Rogers v. Commissioner of Correction, 143 Conn.App. 206, 70 A.3d 1068 (2013). In 2012 our Supreme Court rejected this presumption in favor of joinder in State v. Payne, 303 Conn. 538, 547, 34 A.3d 370 (2012). However, even though the court rejected the presumption in favor of joinder, it did not alter the remainder of the substantive law that Connecticut courts apply when determining whether joinder is appropriate. Rogers v. Commissioner of Correction, supra, 143 Conn.App. 211-13.
"[W]hen charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors." State v. Payne, supra, 303 Conn. 549-50. "In deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb ... The defendant bears a heavy burden of showing that [joinder] resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions." (Internal quotation marks omitted.) State v. Rodriguez, 192 Conn.App. 115, 123-24 (2019), quoting State v. Payne, supra, 543-44.
In State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987), "our Supreme Court recognized three factors that must be considered by a trial court in determining whether joinder is appropriate. Those factors are (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." (Citation omitted; internal quotation marks omitted.) State v. Boscarino, 86 Conn.App. 447, 460, 861 A.2d 579 (2004). The presence of only one Boscarino factor is necessary to prove prejudice. State v. Payne, supra, 303 Conn. 553, n.14. Thus, "[i]f any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred." (Citation omitted; internal quotation marks omitted.) Id. "In determining whether joinder is appropriate, it is well established that where the evidence in one case is cross admissible at the trial of another case, the defendant will not be substantially prejudiced by joinder." Cancel v. Commissioner of Correction, 189 Conn.App. 667, 208 A.3d 1256 (2019), citing State v. Crenshaw, 313 Conn. 69, 83-84, 95 A.3d 1113 (2014) ("[when] evidence of one incident can be admitted at the trial of the other [incident] ... the defendant [will] not ordinarily be substantially prejudiced by joinder of the offenses for a single trial" [internal quotation marks omitted]); State v. Payne, supra, 549-50 (same).
The trial court in the present matter considered all the arguments in favor of joinder, as well as in support of severance, and ruled on August 21, 2012. Judge White did not merely find that there was a presumption in favor of joinder. Instead, the court cited to Boscarino and even the recently decided Payne, and detailed the reasons supporting joinder. The most significant reasons were that evidence from the three incidents was cross admissible and connected via either physical evidence and/or inculpatory statements by the petitioner. Although the trial court’s ruling regarding joinder was opposed and objected to by Attorney Phillips, no claim on appeal was raised by Attorney Foster challenging the trial court’s ruling.
Since Attorney Foster did not testify at the habeas trial, it is entirely unknown from the evidence presented during the habeas trial what Attorney Foster’s process was for selecting claims on the direct appeal. This court must presume, unless it is proven otherwise, that appellate counsel’s choices were in furtherance of a reasonable strategy, and premised on a review and selection process that comported with a standard of reasonably effective assistance. This court cannot conclude, in the absence of evidence proving otherwise, that appellate counsel’s strategy was unreasonable given all the circumstances.
The petitioner has also provided no evidence or argument in support of proving prejudice. Given the trial court’s reasoned ruling, he cannot prove that had Attorney Foster challenged joinder on appeal, there is a reasonable probability that he would have been successful in that appeal. Thus, the petitioner has failed to show that Attorney Foster was deficient, as well as that had a claim been raised on appeal challenging the trial court’s joinder ruling, that the outcome of the appeal would have been different.
CONCLUSION
The petitioner has failed to meet his burden of proof as to his claims that both trial and appellate counsel rendered ineffective assistance of counsel. The claims of ineffective assistance are denied and judgment shall enter denying the petition for a writ of habeas corpus.