Walton v. Commissioner of Correction

• Decision Date: 02 May 2000
• Docket Number: (AC 18572)
• Citation: 749 A.2d 666,57 Conn. App. 511
• Court: Connecticut Court of Appeals
• Parties: LONNIE WALTON v. COMMISSIONER OF CORRECTION

57 Conn. App. 511

749 A.2d 666

LONNIE WALTON v. COMMISSIONER OF CORRECTION

(AC 18572)

Appellate Court of Connecticut.

Argued October 21, 1999.

Officially released May 2, 2000.

Foti, Schaller and Mihalakos, JS. Del Atwell, special public defender, for the appellant (petitioner).

Richard F. Jacobson, special assistant state's attorney, for the appellee (respondent).

Opinion

SCHALLER, J.

The petitioner, Lonnie Walton, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that his attorney (1) improperly proceeded to trial and sentencing despite being aware of a conflict of interest and (2) failed to provide effective assistance of counsel in several respects, namely, that his attorney failed to file a motion for a bill of particulars, to conduct an adequate investigation and to object to an improper jury instruction.¹ We affirm the judgment of the habeas court.

The relevant facts and procedural history necessary to the resolution of this appeal are set forth in State v. Walton, 34 Conn. App. 223, 225, 641 A.2d 391, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994). "On the morning of June 2, 1990, the [petitioner] and a second male approached the victim, Angel Perez, as he was getting out of his automobile in Bridgeport. The second male pointed a gun at Perez and demanded his car key. When Perez refused, he was told by the [petitioner] to `give it to him or we will shoot you.' Perez relinquished his car key and was told to sign over the title to the car or he would be shot. Perez agreed to do as commanded if they would allow him to remove some cans that he had collected for deposit money and stored in plastic bags in the car. While doing so, Perez pulled out a metal rod and hit the second male in the face several times. Perez then fled and was shot at by the second male. The [petitioner] and the second male fled.

"The police arrived and began a search of the area. The two assailants were observed walking together a short distance away and an officer ordered them to stop. The second male pulled a handgun from his waistband, handed it to the [petitioner], and fled. The [petitioner] was seized. Shortly thereafter, Perez identified the [petitioner] as one of the two men who had robbed him."

Following a jury trial, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-8, 53a-49 and 53a-59 (a) (1).

The habeas court made the following additional findings of fact. At trial, the petitioner claimed that he was coerced into committing the crimes by an unidentified assailant and that he was not a willing participant. In December, 1990, approximately four months prior to the commencement of trial, trial counsel first became aware of the existence of the unknown assailant. At that time, the petitioner claimed that he saw the unknown assailant at the Bridgeport correctional center. Upon learning this information, counsel contacted the warden in an effort to obtain a photographic spread of the inmates located in the cell block at that time. As a result of the warden's refusal to produce the photographs, counsel subpoenaed the warden and demanded the production of the photographs. The warden filed a motion to quash the subpoena, which subsequently was denied after a hearing. The warden was required to produce photographs of all of the inmates located in the Bridgeport facility on April 19, 1990, for the inspection and review by the petitioner. After reviewing the photographs, the petitioner was unable to identify the person whom he claimed coerced him into committing the crime. Sometime after the petitioner's sentencing, the petitioner learned that the name of the person whom he claimed coerced him was Charles Carr. From September 25, 1990, to March 31, 1991, Carr, who was incarcerated on unrelated charges, was represented by a public defender in the same office as the petitioner's trial counsel.

Subsequent to the disposition of his direct appeal,² the petitioner filed an amended petition for a writ of habeas corpus, raising multiple allegations of ineffective assistance of trial counsel. The habeas court dismissed the petitioner's petition, finding that the petitioner was not denied the effective assistance of counsel. This appeal followed.

At the outset, we note that, in considering a habeas corpus appeal, "[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.... Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

I

First, we consider the petitioner's claim that he was denied the effective assistance of counsel because of a conflict of interest. The petitioner maintains that he and Carr, the person whom he claims coerced him into committing the crimes, were represented for a period of approximately four months by attorneys in the same office of the public defender. The habeas court found this claim to be without merit because at the time of trial or sentencing, neither Carr's name nor his identity were known to the petitioner or his attorney. We agree with the determination of the habeas court.

"The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel." State v. Martin, 201 Conn. 74, 78, 513 A.2d 116 (1986), citing Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Festo v. Luckart, 191 Conn. 622, 626, 469 A.2d 1181 (1983). Akin to this right, "a criminal defendant is entitled to be represented by an attorney free from conflicts of interest." State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996); Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942); Festo v. Luckart, supra, 626-27. The trial court retains "broad discretionary power [in determining] whether an attorney should be disqualified for an alleged ... conflict of interest." (Internal quotation marks omitted.) State v. Webb, supra, 417; State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part on other grounds, State v. Powell, 186 Conn. 547, 555, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

In a claim of ineffective assistance of trial counsel predicated on an alleged conflict of interest, the petitioner bears the burden of satisfying a two-pronged test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must first demonstrate "that counsel actively represented conflicting interests and [second] that an actual conflict of interest adversely affected his lawyer's performance." (Internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991). To prevail, "the defendant need not establish actual prejudice.... Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." (Citation omitted; internal quotation marks omitted.) Id., quoting Strickland v. Washington, supra, 692.

In the present case, the habeas court determined that Carr, the person who allegedly coerced the petitioner into committing the crimes, "was not known to the petitioner or his counsel at the time of trial or sentencing."³ It was not discovered until after trial and sentencing that the petitioner and Carr were both represented by the same office of the public defender for a four month period. Without a showing that the petitioner or his attorney actually knew Carr's identity before sentencing, it is difficult to imagine how the attorney's duty of undivided loyalty to his client was compromised or how the petitioner's representation was jeopardized in any way. Indeed, for an attorney to actively represent conflicting interests, the attorney must be aware of at least both parties' names or some other type of identifying information. The petitioner has not demonstrated the existence of a conflict of interest, nor has he shown how the alleged conflict adversely affected counsel's representation of him.

II

Next, the petitioner claims that he was denied the effective assistance of counsel because counsel failed to file a bill of particulars, conduct an adequate investigation, object to an improper jury instruction and move for a mistrial.⁴ We will address each of these arguments in turn.

Initially, we note that to establish an ineffective assistance of counsel claim, the petitioner must satisfy the two-part test set forth in Strickland v. Washington, supra, 466 U.S. 687. To prevail, the petitioner must first "show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the [petitioner] must show that the deficient...