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STATE OF CONNECTICUT v. EDWIN LEON, JR.
(AC 37222)
DiPentima, C. J., and Gruendel and Lavery, Js.
Argued May 13—officially released September 8, 2015
(Appeal from Superior Court, judicial district of
Hartford, Mullarkey, J.)
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).
Opinion
DiPENTIMA, C. J. The defendant, Edwin Leon, Jr.,
appeals from the judgment of conviction, rendered fol-
lowing 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 conces-
sion 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 defen-
dant subsequently was arrested and charged in an
amended long form information with murder in viola-
tion 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 Hart-
ford, 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 eve-
ning, 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 moth-
er’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, testi-
fied 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 inten-
tional, and the circumstances surrounding this, I sug-
gest, 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 deliberat-
ing 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 sug-
gesting 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.’’ (Empha-
sis added.)
The court instructed the jury as to murder in violation
of § 53a-54a, and the lesser included charges of man-
slaughter 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. Fol-
lowing 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 car-
rying 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 predi-
cated 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, A.3d , cert.
denied, 317 Conn. 916, A.3d (2015). Further-
more, ‘‘[t]he transcript of the proceedings in the trial
court allows us to examine the actions of defense coun-
sel 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 devel-
oped by a trial court. Without a hearing in which the
reasons for counsel’s decision may be elicited, any deci-
sion of ours . . . would be entirely speculative.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) State v. Greene, supra, 152.
The defendant argues that this case presents a rare
occasion in which review on direct appeal is appro-
priate. 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 ele-
ment 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, where
it has stated that ‘‘[o]n the rare occasions that we have
addressed an ineffective assistance of counsel claim on
direct appeal, we have limited our review to allegations
that the defendant’s sixth amendment rights had been
jeopardized by the actions of the trial court, rather than
by those of his counsel.’’ (Emphasis omitted.) State v.
Crespo, 246 Conn. 665, 688, 718 A.2d 925 (1998), cert.
denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909
(1999). Furthermore, ‘‘[w]e have addressed such claims,
moreover, only where 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.’’ Id. No
such improper actions by the trial court are alleged
here.
Our Supreme Court has determined that when a claim
is unpreserved, as in this case, ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis
in original; footnote omitted.) State v. Golding, supra,
213 Conn. 239–40; see In re Yasiel R., 317 Conn. 773,
781, A.3d (2015) (modifying third prong).
In relation to his claims, the defendant argues that
the record is adequate for review and does not require
an additional habeas corpus record because the tran-
scripts reveal counsel’s concession of guilt, the conflict-
ing goals of the defendant and his counsel, and the
absence of any on-the-record consent by the defendant
to his counsel’s strategy. Therefore, he argues that a
hearing would ‘‘serve no purpose.’’ The state responds
that although the defendant may have a claim before
a habeas court, the present record is inadequate for
appellate review, and the defendant does not confine
his claim to errors made by the court, as required by
Crespo for ineffective assistance of counsel claims on
direct appeal. We agree with the state and conclude
that each of the defendant’s claims, while cloaked in
constitutional language, is predicated upon an ineffec-
tive assistance of counsel claim requiring a full eviden-
tiary record by way of habeas corpus.
In State v. Jose V., supra, 157 Conn. App. 405,7 recently
decided by this court, the defendant claimed that ‘‘[t]his
is one of the exceedingly rare cases where this court
may review the effectiveness of counsel in a direct
appeal, because defense counsel admitted [the claimed
error] on the record . . . . This was not a tactical
choice based on the exercise of professional judgment.
. . . [T]herefore, the defendant’s claims may be
resolved as a matter of law upon review of the existing
record, without need for further evidentiary develop-
ment in a habeas corpus trial.’’ (Internal quotation
marks omitted.) This court disagreed and held that
‘‘[a]lthough the record may reflect the actions of
defense counsel during the sentencing proceeding, we
do not know all of the reasons for those actions. . . .
The record is silent as to the advice that may have been
given by defense counsel that the defendant chose not
to follow. All of the relevant circumstances are not
known. 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.
. . . Accordingly, we decline to review the defendant’s
claim that he was deprived of effective assistance of
counsel.’’ (Citation omitted; internal quotation marks
omitted.) Id., 405–406.
Here, we are presented with a similar scenario, in that
there is an incomplete factual record and the defendant
seeks to bypass habeas review.8 There is an insufficient
evidentiary record for the defendant’s ineffective assis-
tance of counsel claim and, as in Jose V., we do not know
the underlying reasons for defense counsel’s decision-
making or what tactical decisions were made on the
basis of conversations between defense counsel and
the defendant. Furthermore, the record in the present
case is similarly devoid of any indication as to whether
there were any discussions with the state regarding the
lesser included charges. Absent testimony from defense
counsel and the defendant, this court could only specu-
late as to all of the strategic considerations and conver-
sations between counsel and the defendant, which may
have induced counsel to act as he did during closing
argument. In addition, there is no claim that the trial
court erred by violating the defendant’s sixth amend-
ment right to effective assistance of counsel. See State
v. Crespo, supra, 246 Conn. 688. The defendant’s claim
thus fails under the first prong of Golding.9
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the defendant challenges only the manslaughter conviction
in this appeal.
Specifically, the defendant claims that defense counsel violated the defen-
dant’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 the
effective assistance of counsel.
2
General Statutes § 53a-54a (a) provides: ‘‘A person is guilty of murder
when, with intent to cause the death of another person, he causes the death
of such person or of a third person or causes a suicide by force, duress or
deception; except that in any prosecution under this subsection, it shall be
an affirmative defense that the defendant committed the proscribed act or
acts under the influence of extreme emotional disturbance for which there
was a reasonable explanation or excuse, the reasonableness of which is to
be determined from the viewpoint of a person in the defendant’s situation
under the circumstances as the defendant believed them to be, provided
nothing contained in this subsection shall constitute a defense to a prosecu-
tion for, or preclude a conviction of, manslaughter in the first degree or
any other crime.’’
3
At trial, the parties stipulated that the defendant ‘‘did not have a permit,
issued by the state of Connecticut and the town of East Hartford . . . to
carry a revolver on May 19, 2012.’’
4
The following exchange occurred between defense counsel and the
defendant regarding the discharge of the gun:
‘‘Q. Did you know that was going to happen?
‘‘A. No. I did not.
‘‘Q. Did you know the gun was going to go off?
‘‘A. No. I did not.
‘‘Q. Did you intentionally pull that trigger?
‘‘A. No. I did not.’’
5
Pouliot died as a result of the gunshot wound to her neck, which severed
her external carotid artery.
6
The defendant was acquitted of the charge of murder in count one.
7
In Jose V., the defendant appealed from the judgment of conviction,
rendered after a jury trial, of sexual assault in the fourth degree in violation
of General Statutes § 53a-73a (a) (1) (A) and risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). On appeal, in relevant part,
the defendant claimed that the court’s consideration during the sentencing
proceeding of a letter he had written to the state’s attorney, which contained
incriminating statements, deprived him of his right to the effective assistance
of counsel. State v. Jose V., supra, 157 Conn. App. 403–406. After delivering
the letter to the state’s attorney, defense counsel had the contents of the
letter translated from Spanish to English on the day of sentencing, The court
learned of its contents through the state’s attorney’s sentencing remarks. Id.,
397–400.
8
The defendant claims that the waiver of basic trial rights must occur on
the record because the concession resembled the functional equivalent of
a guilty plea and, therefore, must be reviewed in this appeal. He argues that
‘‘[o]nly an express on-the-record waiver made personally by the defendant
will suffice.’’ For this proposition, the defendant cites United States v.
Holman, 314 F.3d 837, 843 (7th Cir. 2002), cert. denied, 538 U.S. 1058, 123
S. Ct. 2238, 155 L. Ed. 2d 1108 (2003), however, we note that the United
States Court of Appeals for the Seventh Circuit stated that, ‘‘[w]e agree with
the Sixth Circuit that obtaining a defendant’s consent on the record in open
court is the preferred method of forestalling any issues of consent that
could come up later on appeal . . . . We also agree that other methods,
such as an affidavit from the defendant describing his discussions with his
attorney and consent to the strategy, could work just as well.’’ (Citations
omitted; emphasis added.) There is no indication that the Seventh Circuit
intended to impose a new requirement that all waivers must be on the record
in open court.
9
Additionally, in his brief, the defendant states that the claim is reviewable
under the plain error doctrine. We have previously held that ‘‘[b]ecause the
record is inadequate for review under Golding, it is also inadequate for
consideration under the plain error doctrine.’’ State v. Shields, 124 Conn.
App. 584, 601 n.12, 5 A.3d 984 (2010), aff’d, 308 Conn. 678, 69 A.3d 293
(2013), cert. denied, U.S. , 134 S. Ct. 1040, 188 L. Ed. 2d 123 (2014).
The defendant’s claim therefore, also fails under the plain error doctrine.
Finally, the defendant’s claim does not require a reversal by invocation
of the court’s supervisory powers. ‘‘[O]ur supervisory authority . . . is not
a form of free-floating justice, untethered to legal principle. . . . [T]he integ-
rity of the judicial system serves as a unifying principle behind the seemingly
disparate use of our supervisory powers. . . . [O]ur supervisory powers
are invoked only in the rare circumstance where [the] traditional protections
are inadequate to ensure the fair and just administration of the courts . . . .’’
(Internal quotation marks omitted.) State v. Kuncik, 141 Conn. App. 288,
292–93, 61 A.3d 561, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013).