Langston v. Commissioner of Correction, 26517.

• Decision Date: 09 October 2007
• Docket Number: No. 26517.,26517.
• Court: Connecticut Court of Appeals
• Parties: Richard LANGSTON v. COMMISSIONER OF CORRECTION.

931 A.2d 967

104 Conn.App. 210

Richard LANGSTON v. COMMISSIONER OF CORRECTION.

No. 26517.

Appellate Court of Connecticut.

Argued February 22, 2007.

Decided October 9, 2007.

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellant (respondent).

Temmy Ann Pieszak, chief of habeas corpus services, for the appellee (petitioner).

GRUENDEL, LAVINE and WEST, Js.

WEST, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting the second amended petition for a writ of habeas corpus filed by the petitioner, Richard Langston. On appeal, the respondent claims that the habeas court improperly concluded that the petitioner was denied the effective assistance of trial counsel because his privately retained counsel (1) failed to object to certain testimony and (2) conceded during final argument that the petitioner had committed one of the crimes with which he was charged. We agree and therefore reverse the judgment of the habeas court.

The following procedural history is relevant to the respondent's appeal. The petitioner was arrested on March 25, 1998, in connection with an armed robbery and shooting that occurred on March 4, 1998, during a drug transaction in a parking lot on Garden Street in Hartford. The petitioner was charged with assault in the first degree in violation of General Statutes § 53a-59(a)(5), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k, criminal possession of a firearm in violation of General Statutes § 53a-217 and robbery in the first degree in violation of General Statutes § 53a-134(a)(2). The jury found the petitioner not guilty of assault in the first degree, but guilty of the other charges. The petitioner's conviction was upheld summarily on direct appeal. See State v. Langston, 67 Conn.App. 903, 786 A.2d 547 (2001), cert. denied, 259 Conn. 916, 792 A.2d 852 (2002).

The petitioner filed a petition for a writ of habeas corpus in April, 2002, in which he alleged that he was denied the effective assistance of counsel on numerous grounds. Only two of those claims are relevant to this appeal. The court granted his second amended petition for a writ of habeas corpus in part, concluding that defense counsel had rendered ineffective assistance, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by (1) failing to object to the prosecutor's questioning an investigating police officer about a handgun silencer made from a potato (potato silencer) that was found at the time of the petitioner's arrest and (2) conceding during final argument, without the petitioner's prior knowledge or permission, that the petitioner had participated in the robbery. The respondent filed this appeal following the court's granting the petition for certification to appeal. Additional facts will be addressed as necessary.

"Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary. . . .

"In Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

"It is well established that we need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. . . . To prevail on the prejudice prong, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citations omitted; internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 530-31, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).

"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness. . . . In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it had proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

"The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding . . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Citations omitted; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn.App. 133, 136-37, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).

I

The respondent first claims that the court improperly determined that defense counsel rendered ineffective assistance by failing to object to testimony concerning the potato silencer. We agree.

At the petitioner's criminal trial, the prosecutor called Juan Roman, a detective with the Hartford police department, to testify about the petitioner's arrest. According to Roman, the petitioner was arrested at his residence in East Hartford. The petitioner and his female companion, who shared the residence, both gave the officers permission to search the apartment. One of the officers found a round object bound with black electrical tape. The round object was determined to be a potato. A police sergeant who accompanied Roman asked the petitioner what the object was. The petitioner responded that it was a silencer for a handgun and that he had seen something like it on television. In his amended petition for a writ of habeas corpus, the petitioner alleged that defense counsel's representation was ineffective because he failed to object to or move to strike Roman's testimony about the potato silencer because the testimony was "irrelevant and remote. . . ."

The habeas court concluded that defense counsel's performance was deficient in failing to file a motion in limine regarding evidence of the potato silencer or to object to evidence about it at trial. The court found that there was overwhelming evidence against the petitioner, but concluded that the evidence of the potato silencer was not harmless and likely affected the result of trial. In reaching its conclusion, the court relied heavily on State v. Acklin, 171 Conn. 105, 368 A.2d 212 (1976).¹ "Evidence as to articles found in the possession of an accused person subsequent to the time of the commission of a crime for which he is being tried is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence in the case; otherwise the law does not sanction the admission of evidence that the defendant possessed even instruments or articles adapted to the commission of other crimes." (Internal quotation marks omitted.) Id., at 114, 368 A.2d 212. In sum, the court reasoned that because there was no evidence that the potato silencer was used on the night in question, evidence about it was irrelevant and therefore inadmissible. The court did not, however, explain how the result of the trial likely would have been different if the evidence concerning the potato silencer had not been admitted.

As previously stated, the events that gave rise to the charges against the petitioner stemmed from a drug transaction. The state produced evidence at trial that the victim and a friend approached the petitioner and his accomplice to purchase drugs. The state also produced evidence that the petitioner had a handgun in the waistband of his trousers at the time he demanded money...