Leconte v. Warden

• Decision Date: 02 October 2019
• Docket Number: CV154007109S
• Parties: Alain LECONTE #341059 v. WARDEN
• Court: Connecticut Superior Court

Alain LECONTE #341059 v. WARDEN

No. CV154007109S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

October 2, 2019

UNPUBLISHED OPINION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...