Leconte v. Comm'r of Corr.

• Decision Date: 07 September 2021
• Docket Number: AC 43584
• Citation: 207 Conn.App. 306,262 A.3d 140
• Parties: Alain LECONTE v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

207 Conn.App. 306

262 A.3d 140

Alain LECONTE

v.COMMISSIONER OF CORRECTION

AC 43584

Appellate Court of Connecticut.

Argued February 3, 2021

Officially released September 7, 2021

Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).

Timothy F. Costello, senior assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

Prescott, Cradle and DiPentima, Js.

PRESCOTT, J.

The petitioner, Alain Leconte, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the court improperly concluded that he failed to demonstrate that (1) his trial counsel rendered ineffective assistance of counsel with respect to his efforts to suppress or to otherwise respond to evidence of an inculpatory statement he made to his cellmate, and (2) his appellate counsel rendered ineffective assistance by failing to raise on direct appeal a claim that the trial court improperly granted the state's motion to join for trial the charges against him that arose out of three separate robberies. We are not persuaded by the petitioner's first claim and decline to review the second claim because of inadequate briefing. Accordingly, we affirm the judgment of the habeas court.

The following facts, as set forth by our Supreme Court in the petitioner's direct criminal appeal, are relevant to our disposition of this appeal. "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 $1300. 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. On February 13, 2013, the court rendered judgments of conviction and imposed a total effective sentence of ninety years [of] incarceration." State v. Leconte , 320 Conn. 500, 502–505, 131 A.3d 1132 (2016).

On March 26, 2015, the petitioner initiated this habeas action. After the petitioner was appointed counsel, he filed an amended petition for a writ of habeas corpus in which he asserted various ways in which he allegedly was deprived of the effective assistance of his trial counsel, Attorney Mark Phillips, and his appellate counsel, Attorney Daniel J. Foster. Specifically, the petitioner alleged, among other things, that Phillips rendered ineffective assistance by failing to investigate adequately and to present evidence of the petitioner's mental health issues in order to persuade the trial court to suppress an inculpatory statement the petitioner made to his cellmate and, once admitted into evidence, by failing to cross-examine witnesses about the reliability of that statement. With respect to appellate counsel, the petitioner alleged that Foster rendered ineffective assistance by failing to raise on direct appeal a claim, which was preserved below, that the trial court improperly granted the state's motion for joinder of the charges relating to all three robberies.

Following a trial on the merits, the habeas court concluded that the petitioner failed to prove his claims of ineffective assistance of counsel. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly concluded that he failed to prove that his trial counsel rendered ineffective assistance in his efforts to suppress or to otherwise respond to evidence of an inculpatory statement the petitioner made to his cellmate, which had been recorded. The petitioner argues that trial counsel failed to investigate adequately, and to present evidence of, the fact that he suffered from significant mental disease that rendered involuntary any inculpatory statement he made to his cellmate. In the petitioner's view, if such evidence had been secured and presented by counsel, the trial court would have suppressed the statement. In the alternative, he contends that such evidence was necessary to "effectively cross-examine the state's witnesses in order to discredit their testimony about the recorded statements." We are not persuaded by the petitioner's argument regarding suppression of the recorded statement and conclude that his alternative contention is inadequately briefed.

The following additional facts and procedural history are relevant to this claim. After the petitioner had been arrested on charges relating to the Stamford robbery, but prior to being charged with respect to the robberies in Norwalk and Greenwich, he made inculpatory statements to Simmons, who was wearing a recording device at the request of the state, with whom he was cooperating. The inculpatory statement related to the petitioner's involvement in the Norwalk and Greenwich robberies but did not include any discussion of the Stamford robbery.

The petitioner subsequently moved to suppress the audio recording of his statement on the ground that the state had violated his sixth amendment right to counsel because, at the time he admitted his involvement in the Norwalk and Greenwich crimes to Simmons, he already was under arrest and represented by counsel with respect to the charges arising from the Stamford robbery. Following a suppression hearing at which the petitioner and Simmons, among others, testified, the trial court denied the petitioner's motion to suppress.

After the petitioner was convicted, he filed a direct appeal in which he claimed that the trial court improperly denied his motion to suppress. In that appeal, the petitioner acknowledged "that, because the statements concerned offenses for which he was not yet represented by counsel, they were admissible with respect to the charges stemming from the Norwalk and Greenwich robberies at the time of his trial on those charges. He claim[ed], however, that, because the trial court granted the state's motion for joinder and tried the charges in all three cases in a single proceeding, the incriminating statements could have invited the jury to infer that, if the [petit...