State v. Leon

• Decision Date: 08 September 2015
• Docket Number: No. 37222.,37222.
• Citation: 159 Conn.App. 526,123 A.3d 136
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edwin LEON, Jr.

159 Conn.App. 526

123 A.3d 136

STATE of Connecticut

v.Edwin LEON, Jr.

No. 37222.

Appellate Court of Connecticut.

Argued May 13, 2015.

Decided Sept. 8, 2015.

Mark Rademacher, assistant public defender, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and LAVERY, Js.

Opinion

DiPENTIMA, C.J.

The defendant, Edwin Leon, Jr., appeals from the judgment of conviction, rendered following a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a–55(a)(3) and 53a–55a, and carrying a revolver without a permit in violation of General Statutes § 29–35. On appeal, the defendant claims that his counsel's concession of his guilt to the lesser included offenses during closing argument, without an on-the-record consent, violated his federal and state constitutional rights.¹ We affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to our resolution of this appeal. The defendant and the victim, Krisann Pouliot, had been in a romantic relationship for three years and lived in the home of Pouliot's mother in East Hartford. On May 19, 2012, after a night of drinking and arguing, the defendant and Pouliot returned home where the defendant fatally shot Pouliot in the neck. The defendant subsequently was arrested and charged in an amended long form information with murder in violation of General Statutes § 53a–54a² and carrying a revolver without a permit in violation of § 29–35.

A jury trial began on September 29, 2013, before the court, Mullarkey, J. The defendant testified as to the following. On the night of the shooting, the defendant and Pouliot drank a bottle of champagne before they left home for downtown Hartford at about 10 p.m. While downtown, the defendant and Pouliot each consumed approximately four to five alcoholic beverages. The defendant stated that when he went to downtown Hartford, he regularly carried a revolver due to incidents that had taken place there previously. The defendant did not have a permit to carry a revolver.³ At some point while at various clubs in Hartford, the defendant and Pouliot began to argue about the attention that the defendant was paying to other women. Later that evening, the defendant and Pouliot drove home, where the defendant took the gun from the car and brought it upstairs. In their shared bedroom, the defendant and Pouliot continued to argue with escalating intensity. At some point, the defendant pushed Pouliot onto the bed, placed his left hand around her neck, and held his gun to her neck with his right hand. The defendant stated that he pulled out his gun to “calm [Pouliot] down.” With his left hand still around Pouliot's neck, the gun discharged and the bullet entered Pouliot's neck and exited, severing a finger on the defendant's left hand.

According to the defendant, after shooting Pouliot, he held her for a few minutes as she gasped for breath. The defendant then picked up the gun, put on a sweatshirt, and left the premises without reporting the incident to anyone. The defendant walked to his mother's house, which took him approximately forty-five minutes, during which time he did not summon help for Pouliot or alert anyone to the shooting. The defendant testified that he never intended to shoot the gun and did not pull the trigger intentionally.⁴ After arriving at his mother's home, the defendant told his mother, brother, and the mother of his child what had taken place, at which point the police were called. Matthew Martinelli, an East Hartford firefighter paramedic, testified that upon his arrival, it was immediately clear that Pouliot was not breathing and, after failing to detect a heartbeat, he determined that she was dead.⁵

During defense counsel's closing argument to the jury, he stated: “I suggest again that this was not intentional, and the circumstances surrounding this, I suggest, indicate that it wasn't intentional. I think he panicked after this happened. He should have gotten help immediately, but did not lawyer up, did not run, I mean, not run away, but he ran away from the scene, but he didn't try to run, he didn't flee the state, didn't do any of that, and told everybody who asked what happened. Stupid, maybe reckless, definitely stupid, in fact it's so stupid that I have trouble getting—wrapping my mind around that it was intentional.

It was, you just—and the hammer back, carrying a weapon with the hammer back, he had no training, you heard him testify to that, no firearms training, obviously, because the first thing you're taught is, you don't do that, you don't carry a weapon with a round in the chamber, even.

“I'm asking that you consider when you are deliberating that there is a life that was lost and my client is responsible in some way, there's no question about that. The question is, responsible for what of the charges that you'll hear when the judge reads the charge. I suggest that this was an accident. It may have been reckless behavior, but it was not intentional. I'm suggesting that he certainly should be convicted on the gun and on criminally negligent homicide; there is a life lost, but again, in my mind this just does not appear, does not sound like an intentional shooting.” (Emphasis added.)

The court instructed the jury as to murder in violation of § 53a–54a, and the lesser included charges of manslaughter in the first degree with a firearm (intentional) in violation of § 53a–55(a)(1), manslaughter in the first degree with a firearm (reckless indifference) in violation of § 53a–55(a)(3), and criminally negligent homicide in violation of General Statutes § 53a–58. Following jury deliberations, the defendant was found guilty of manslaughter in the first degree with a firearm in violation of §§ 53a–55(a)(3)⁶ and 53a–55a, and carrying a revolver without a permit in violation of § 29–35. The defendant was sentenced to a total effective term of thirty-one years imprisonment.

On appeal, the defendant claims that his counsel's decision to concede his client's guilt to the lesser included offenses during closing argument, without the defendant's consent appearing on the record, violated the defendant's right to plead not guilty, his right to testify, his right to have the state prove him guilty beyond a reasonable doubt and, finally, his right to have the effective assistance of counsel. In essence, the defendant argues that his counsel's concession resulted in the ineffective assistance of counsel by abridging the above-mentioned rights.

We note first that the claims in this appeal are predicated upon the defendant's overarching claim of his counsel's ineffective assistance. Our Supreme Court has held that, “[a]lmost without exception, we have required that a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim.... Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency.... [O]n the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal ... we have limited our review to situations in which the record of the trial court's allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development.” (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Greene, 274 Conn. 134, 151–52, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006) ; see also State v. Jose V., 157 Conn.App. 393, 404–405, 116 A.3d 833, cert. denied, 317 Conn. 916, 117 A.3d 854 (2015). Furthermore, “[t]he transcript of the proceedings in the trial court allows us to examine the actions of defense counsel but not the underlying reasons for his actions.... Our role ... is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. Without a hearing in which the reasons for counsel's decision may be elicited, any decision of ours ... would be entirely speculative.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Greene, supra, at 152, 874 A.2d 750.

The defendant argues that this case presents a rare occasion in which review on direct appeal is appropriate. The defendant cites four reasons that his claim should be reviewed: (1) the waiver of basic trial rights must appear on the record, (2) he was denied his right to plead not guilty and have the state prove each element of the offense beyond a reasonable doubt, (3) his counsel's argument undermined his right to testify, and (4) his counsel's concession to his being guilty of lesser included offenses undermined the adversary structure of the trial process and denied him his right to effective assistance of counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Further, he argues that such a concession is prejudicial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant also contends that this unpreserved claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, in the alternative, plain error. See Practice Book § 60–5. The defendant further argues that this court should exercise its supervisory powers to reverse his conviction.

In opposition, the state disagrees and directs our attention to the reasoning of our Supreme Court,...