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ALAIN LECONTE v. COMMISSIONER
OF CORRECTION
(AC 43584)
Prescott, Cradle and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of several crimes in connection
with three armed robberies in Norwalk, Greenwich and Stamford, sought
a writ of habeas corpus, claiming, inter alia, that his trial counsel ren-
dered ineffective assistance by failing to investigate adequately and to
present evidence that he suffered from significant mental disease that
rendered involuntary an inculpatory statement regarding his involve-
ment in the Norwalk and Greenwich robberies that he had made to a
cellmate while he was incarcerated on charges related to the Stamford
robbery. The petitioner asserted that evidence of his mental health issues
would have led the trial court to grant his motion to suppress that
statement and was necessary, after the statement was admitted into
evidence, to effectively cross-examine and to discredit the state’s wit-
nesses regarding that statement. The habeas court determined both that
there was no evidence that the petitioner’s statement to the cellmate
was not made knowingly, intelligently and voluntarily, and that the
petitioner failed to present evidence that showed how his mental health
affected the voluntariness of that statement. The court further deter-
mined that, during the pendency of the petitioner’s criminal case, his
mental health records had been reviewed by a physician who was board
certified in forensic psychiatry and that another mental health profes-
sional had prepared a report that concluded that the petitioner was
malingering. The court thus concluded that the petitioner failed to prove
that his trial counsel performed deficiently or that he was prejudiced
by his counsel’s alleged failure to investigate or to present evidence
about the petitioner’s mental illnesses. The court therefore denied the
habeas petition, and the petitioner, on the granting of certification,
appealed to this court. Held:
1. The habeas court properly concluded that the petitioner failed to demon-
strate that he suffered constitutionally ineffective assistance from his
trial counsel: there was no evidence regarding the scope of trial counsel’s
investigation into the petitioner’s mental health or the strategic reasons,
if any, why counsel believed such an investigation was not warranted,
the petitioner did not call his trial counsel or any other witness to testify
regarding the extent of the investigation into the petitioner’s mental
health problems, and the petitioner was not asked during his testimony
whether he had had discussions with or had provided information to
his trial counsel regarding the state of his mental health at the time he
made his inculpatory statement to the cellmate; moreover, there was a
dearth of evidence regarding whether the petitioner’s mental health
issues would have impacted the voluntariness of his statement to the
cellmate to the extent that the trial court would have suppressed the
statement, and this court declined to review the petitioner’s inadequately
briefed claim that evidence regarding his mental health was necessary
to effectively cross-examine and to discredit the state’s witnesses regard-
ing the inculpatory statement, as his appellate brief was devoid of cita-
tions to the record or to the trial transcript bearing on this issue, it did
not state which witnesses he would have cross-examined, the substance
of their testimony or how the medical evidence his counsel allegedly
failed to find would have impeached that testimony, and there was no
merit to the petitioner’s assertion that the habeas court overlooked the
evidence or should have drawn certain inferences in his favor.
2. This court declined to review the petitioner’s inadequately briefed claim
that the habeas court improperly concluded that he did not demonstrate
that 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 for joinder of the three robbery cases; the petitioner’s
brief contained no discussion, analysis or application of any of the
evidentiary principles that would dictate whether certain evidence in
one case would be cross admissible in the other cases, it did not analyze
the cross admissibility of the inculpatory statements he made to various
informants or the ballistics evidence that tended to show that the gun
he used in and that was recovered from the Stamford robbery was also
used in the Greenwich robbery, and he failed to recognize in his brief
that the application of certain factors was unnecessary if the evidence
was cross admissible or to discuss substantively why the evidence was
not cross admissible.
Argued February 3—officially released September 7, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Bhatt, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
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).
Opinion
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 ineffec-
tive 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 per-
suaded 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 gun-
shot 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 Nel-
son, 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 Stam-
ford 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 [peti-
tioner] 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 vari-
ous individuals who had been in Adams Grocery Store
during the robbery identified the [petitioner] and Hack-
ney 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 [peti-
tioner] subsequently was charged with two counts of
robbery in the first degree in connection with this rob-
bery.
‘‘During the [petitioner’s] incarceration for the Stam-
ford 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 evi-
dence 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 [peti-
tioner] guilty of two counts of the lesser included
offense of robbery in the second degree because evi-
dence 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 coun-
sel, Attorney Daniel J. Foster. Specifically, the peti-
tioner alleged, among other things, that Phillips ren-
dered 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 reliabil-
ity 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 improp-
erly granted the state’s motion for joinder of the charges
relating to all three robberies.
Following a trial on the merits, the habeas court con-
cluded 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 involun-
tary 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 ‘‘effec-
tively cross-examine the state’s witnesses in order to
discredit their testimony about the recorded state-
ments.’’ We are not persuaded by the petitioner’s argu-
ment regarding suppression of the recorded statement
and conclude that his alternative contention is inade-
quately 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 state-
ments to Simmons, who was wearing a recording device
at the request of the state, with whom he was cooperat-
ing. The inculpatory statement related to the petition-
er’s involvement in the Norwalk and Greenwich robber-
ies 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 rob-
bery. 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 improp-
erly denied his motion to suppress. In that appeal, the
petitioner acknowledged ‘‘that, because the statements
concerned offenses for which he was not yet repre-
sented 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
[petitioner] had committed the Norwalk and Greenwich
robberies, he was likely to have committed the Stam-
ford robbery.’’ State v. Leconte, supra, 320 Conn. 505.
By its terms, this appellate claim related solely to a
challenge to the conviction of charges arising out of
the Stamford robbery and did not attack his conviction
of the charges relating to the Norwalk and Greenwich
robberies.
Our Supreme Court rejected the petitioner’s claim
on the ground that, even if it assumed, without deciding,
that the trial court improperly denied his motion to
suppress, any error was harmless beyond a reasonable
doubt because ‘‘the evidence of the [petitioner’s] guilt
[with respect to the Stamford robbery], even without
the testimony of Simmons regarding the Norwalk and
Greenwich robberies, is so overwhelming and compel-
ling . . . .’’ Id., 506. As the court stated: ‘‘[T]he [peti-
tioner] voluntarily gave a detailed statement to the
police one day after the Stamford robbery confessing
to his role in that incident and . . . another fellow
inmate, Cheikh Seye, testified that the [petitioner] had
told him in July, 2010, that he had committed the Stam-
ford robbery. Four eyewitnesses also gave testimony
regarding the Stamford robbery that corroborated the
[petitioner’s] description of events inside the store, and
two of the eyewitnesses who had chased him down the
street following the robbery not only corroborated the
[petitioner’s] account of many of his actions after run-
ning out of the store but saw him apprehended by the
police when he was still wearing the stocking to conceal
his face. Accordingly, we conclude that the [petition-
er’s] convictions resulting from his participation in the
Stamford robbery should not be reversed because any
presumed error by the trial court in admitting the
incriminating statements was harmless beyond a rea-
sonable doubt.’’ Id., 507.
In this habeas proceeding, the petitioner asserted that
his trial counsel failed to investigate adequately his
history of mental disease. The petitioner did not call
his trial counsel as a witness at trial and, thus, did
not present evidence regarding the scope of Phillips’
investigation or the strategic choices counsel made in
preparing a defense.
On the basis of the evidence presented, the habeas
court made the following findings of fact with respect
to this claim: ‘‘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 vio-
lated because he had only been arrested for the Stam-
ford 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 Sim-
mons, 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.
***
‘‘[Dr. Tobias Wasser, an assistant professor at the
Yale University School of Medicine and medical director
at the Whiting Forensic Hospital, who has worked with
the Department of Correction [department] since 2014,
and is board certified in forensic psychiatry] reviewed
the petitioner’s mental health records, competency
evaluation, and a report that was prepared by Dr. Eric
Frazer, a mental health professional affiliated with Yale
University, presumably at the request of Attorney Phil-
lips during the pendency of the underlying criminal
case. Dr. Wasser testified that, in 2010–2011, the peti-
tioner was diagnosed with schizophrenia and schizoaf-
fective disorder, both of which are serious mental ill-
nesses. Symptoms of schizophrenia include hallucina-
tions, delusions, paranoia, experiencing stimuli that are
not present, and disorganization of thinking and/or
behavior. There are two types of schizoaffective disor-
der: bipolar and depressive. Schizophrenia and schizo-
affective disorder are treated with a combination of
therapy and antipsychotic medications. If no medica-
tions are administered, according to Dr. Wasser, then
someone suffering from schizophrenia and/or schizoaf-
fective disorder will relapse. In the petitioner’s case,
he has not relapsed after the antipsychotic medications
were stopped. The petitioner in 2010–2011 was also
diagnosed with borderline functioning IQ, antisocial
personality disorder, and post-traumatic stress disor-
der. The report from Dr. Frazer concluded that the
petitioner’s mood dysregulation, auditory hallucina-
tions and additional psychiatric symptoms were sec-
ondary to his drug dependency. Dr. Frazer further con-
cluded that a review of the petitioner’s medical records
did not support a finding that the petitioner suffered
from a thought disorder. Instead, the report concluded
that the symptoms exhibited by the petitioner were
consistent with the conclusion that the petitioner was
malingering.
‘‘While the review of these documents provided an
informative background history, Dr. Wasser did not con-
duct his own evaluation of the petitioner because a
present day evaluation would not be fruitful to examin-
ing the petitioner’s mental health in 2010. Dr. Wasser
was not presented as an expert on the petitioner’s men-
tal health and provided no opinion as to how the peti-
tioner’s mental state affected the voluntariness of the
statements to Simmons.
***
‘‘[T]he petitioner’s medical records entered into evi-
dence show that . . . while in [the department’s] cus-
tody, [he] was diagnosed with various mental health
conditions. Records dated 2014 reflect that he was diag-
nosed with impulse control disorder and antisocial per-
sonality disorder. Another record dated 2013 shows
that [the] petitioner was diagnosed with adjustment
disorder. A mental health assessment dated 2011 indi-
cates that the petitioner’s mental health history
included schizoaffective disorder, impulse control, and
anxiety. Yet another record from December of 2011
indicates that the petitioner was diagnosed with sub-
stance induced psychosis and borderline intellectual
functioning.
‘‘In July, 2011, a psychological evaluation concluded
that the petitioner, despite his intellectual limitations,
intentionally feigned impairment. This evaluation noted
that the petitioner’s scores indicated he is intentionally
attempting to present himself in a negative light. His
response pattern on the validity measure indicates he
feigns illness on all clinical domains assessed, including
affective disorders, memory deficits, neuropsychologi-
cal impairment, low intelligence and psychosis, sug-
gesting his overall cognitive abilities likely fall much
higher than the demonstrated [e]xtremely [l]ow range
of cognitive abilities.
‘‘The petitioner’s mental health and treatment records
span several hundreds of pages and encompass years
prior to 2010 and thereafter. The foregoing references
to specific diagnoses, although not exhaustive, illustrate
the wide range of mental health issues affecting the
petitioner at various times, including the two days Sim-
mons wore a recording device to capture the petition-
er’s incriminating statements.’’ (Footnote omitted;
internal quotation marks omitted.)
In discussing the petitioner’s arguments that trial
counsel rendered deficient performance related to the
petitioner’s mental health, the court stated: ‘‘Although
the petitioner was affected by various mental health
issues while in [the department’s] custody, these mental
health issues varied over time. The evidence presented
to this court fails to prove how he was impacted, if
at all, by such illnesses when Simmons recorded the
petitioner. As the testimony from Dr. Wasser and the
[department’s] medical records show, the petitioner
was found to be malingering, which calls into question
the varying diagnoses listed in the petitioner’s [depart-
ment] medical records. The fact that the petitioner has
not experienced a relapse when he stopped receiving
medications to treat schizoaffective disorder under-
scores the tenuous reliability of past diagnoses. This
tenuousness is further amplified by attempts to assess
the petitioner’s mental health about a decade after the
relevant dates at issue.’’
On the basis of its factual findings, the habeas court
reached the following conclusions: ‘‘The [testimony pre-
sented] fail[s] to show that Attorney Phillips failed to
investigate the petitioner’s mental illnesses and consult
with a doctor. First, the evidence establishes that the
petitioner’s mental health was explored, as demon-
strated by the report of Dr. Frazer. Second, [because]
Attorney Phillips did not testify at the habeas trial, there
is no evidence affirmatively proving that Attorney Phil-
lips made tactical or strategic decisions that were unrea-
sonable, deficient, or below the standard of reasonably
competent criminal defense counsel. More importantly,
the petitioner has not proven what it is exactly that he
alleges Attorney Phillips should have done and how
that would have made a difference in the outcome of
the suppression hearing or the jury’s verdict.
‘‘There is no evidence that the petitioner’s statements
to Simmons were not knowing, intelligent, and volun-
tary. . . . It is well established that counsel is pre-
sumed to have rendered effective [assistance] unless
deficient performance is affirmatively proven. . . .
Furthermore, the petitioner has not presented any evi-
dence that shows how his mental health affected, if at
all, the voluntariness of his statements to Simmons.
Even if the court assumes for the sake of discussion that
the petitioner had mental illnesses, that alone would
not prove that such mental illnesses resulted in the
petitioner’s statements to Simmons being coerced,
involuntary, unreliable or factually untrue. The peti-
tioner has therefore failed to rebut this strong presump-
tion of effective assistance with evidence proving that
Attorney Phillips performed deficiently.
‘‘In addition, the petitioner cannot prove that he was
prejudiced by any failure of Attorney Phillips to prop-
erly put before the trial judge and the jury his mental
illnesses. As recounted previously, a reading of the tran-
script makes clear that the evidence against the peti-
tioner was overwhelming even when removing his state-
ments to Simmons from the equation. There were
several other individuals to whom the petitioner admit-
ted, or alluded to, his involvement in the offenses
charged, and corroboration of the state’s version of
events was provided by independent, impartial wit-
nesses as well as through other evidence submitted to
the jury. There is simply no basis from which this court
can conclude that the petitioner was prejudiced.’’
We begin our analysis of the petitioner’s first claim
with a review of the law governing claims of ineffective
assistance of counsel and the corresponding appellate
standard of review. ‘‘A criminal defendant’s right to the
effective assistance of counsel extends through the first
appeal of right and is guaranteed by the sixth and four-
teenth amendments to the United States constitution
and by article first, § 8, of the Connecticut constitution.
. . . To succeed on a claim of ineffective assistance
of counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment.’’ (Citations omitted; internal quo-
tation marks omitted.) Small v. Commissioner of Cor-
rection, 286 Conn. 707, 712–13, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008). ‘‘To satisfy the preju-
dice prong, a claimant must demonstrate that there is
a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different. . . . Because both prongs . . .
must be established for a habeas petitioner to prevail,
a court may dismiss a petitioner’s claim if he fails to
meet either prong.’’ (Internal quotation marks omitted.)
Antwon W. v. Commissioner of Correction, 172 Conn.
App. 843, 849–50, 163 A.3d 1223, cert. denied, 326 Conn.
909, 164 A.3d 680 (2017). On appeal, ‘‘[a]lthough the
underlying historical facts found by the habeas court
may not be disturbed unless they [are] clearly errone-
ous, whether those facts constituted a violation of the
petitioner’s rights [to the effective assistance of coun-
sel] under the sixth amendment is a mixed determina-
tion of law and fact that requires the application of
legal principles to the historical facts of [the] case. . . .
As such, that question requires plenary review by this
court unfettered by the clearly erroneous standard [of
review].’’ (Internal quotation marks omitted.) Gonzalez
v. Commissioner of Correction, 308 Conn. 463, 469–70,
68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonza-
lez, 571 U.S. 1045, 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013).
The petitioner, in his brief on appeal, does not chal-
lenge any of the habeas court’s underlying factual find-
ings as clearly erroneous. Nor does he claim that the
habeas court applied an incorrect legal standard.
Instead, the petitioner simply asserts that the habeas
court ‘‘overlooked the evidence’’ or should have drawn
certain inferences in his favor from the evidence pre-
sented. This assertion is devoid of merit.
It is well established that it is the petitioner’s burden
to prove that his trial counsel’s performance was defi-
cient and that he was prejudiced by that deficient per-
formance. Strickland v. Washington, supra, 466 U.S.
687. ‘‘We . . . are mindful that [a] fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s per-
spective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that
is, the [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy. . . . [C]ounsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment. . . .
‘‘Similarly, the United States Supreme Court has
emphasized that a reviewing court is required not sim-
ply to give [counsel] the benefit of the doubt . . . but
to affirmatively entertain the range of possible reasons
. . . counsel may have had for proceeding as [he or
she] did.’’ (Citations omitted; internal quotation marks
omitted.) Ricardo R. v. Commissioner of Correction,
185 Conn. App. 787, 796–97, 198 A.3d 630 (2018), cert.
denied, 330 Conn. 959, 199 A.3d 560 (2019).
The petitioner, however, did not call his trial counsel
or any other witness to testify at the habeas trial regard-
ing the extent of the investigation conducted by counsel
into the petitioner’s mental health problems. Moreover,
the petitioner, who testified at the habeas trial, was not
asked about whether he had had any discussions with
or had provided any information to his criminal trial
counsel regarding the state of his mental health at the
time he made his inculpatory statement to Simmons.
As a result, there simply is no evidence in the record
regarding the scope of his trial counsel’s investigation
into the petitioner’s mental health or the strategic rea-
sons, if any, why his trial counsel believed that such
an investigation was not warranted under the circum-
stances. At best, the record supports an inference that
the petitioner’s trial counsel was aware of Frazer’s
report in which the petitioner was described as malin-
gering, and that he realized that it could have been
counterproductive to the petitioner’s case to expose
the jury to such information.
Similarly, there was a dearth of evidence presented
at the petitioner’s habeas trial regarding whether the
petitioner’s mental health issues would have impacted
the voluntariness of the inculpatory statement he made
to Simmons to the extent that the trial court would
have suppressed it. We agree with the habeas court’s
recognition that, simply because the petitioner suffered
from some mental health issues does not establish, by
itself, that those issues undermine the voluntariness
or reliability of the inculpatory statement he made to
Simmons. See, e.g., State v. DeAngelis, 200 Conn. 224,
235, 511 A.2d 310 (1986) (admissions to police are not
rendered involuntary merely because defendant suf-
fered from psychiatric disorder).
We emphasize that the petitioner does not claim that
any of the factual findings made by the habeas court
are clearly erroneous. Instead, the petitioner’s assertion
is simply that the habeas court should have credited
other evidence or drawn certain inferences from certain
evidence that he presented. This assertion, of course,
conflicts with our long-standing recognition that it is
not the province of an appellate court to retry the facts,
or to pass on the credibility of witnesses or the weight
to be accorded their testimony. Pandolphe’s Auto Parts,
Inc. v. Manchester, 181 Conn. 217, 220–21, 435 A.2d 24
(1980). Accordingly, we decline the petitioner’s invita-
tion to do so.
Finally, we decline to review because of inadequate
briefing the petitioner’s related assertion that, even if
the additional evidence regarding the petitioner’s men-
tal health would not have resulted in suppression of the
inculpatory statement, it was necessary to ‘‘effectively
cross-examine the state’s witnesses in order to discredit
their testimony about the recorded statements.’’ ‘‘Ordi-
narily, [c]laims are inadequately briefed when they are
merely mentioned and not briefed beyond a bare asser-
tion. . . . Claims are also inadequately briefed when
they . . . consist of conclusory assertions . . . with
no mention of relevant authority and minimal or no
citations from the record . . . . As a general matter,
the dispositive question in determining whether a claim
is adequately briefed is whether the claim is reasonably
discernible [from] the record . . . . We are not
required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.’’ (Internal quotation marks
omitted.) Villafane v. Commissioner of Correction, 190
Conn. App. 566, 578–79, 211 A.3d 72, cert. denied, 333
Conn. 902, 215 A.3d 160 (2019).
The petitioner’s brief on appeal does not state which
witnesses he would have cross-examined regarding the
voluntariness of his inculpatory statement, the sub-
stance of those witnesses’ testimony, or how the addi-
tional evidence that Phillips allegedly failed to find
would have served to impeach these witnesses’ testi-
mony. Additionally, the petitioner’s brief is devoid of
citations to the record or the transcript of the criminal
trial bearing on this issue. We therefore decline to
review his claim and conclude that the habeas court
properly concluded that the petitioner failed to demon-
strate that he suffered constitutionally ineffective assis-
tance from his trial counsel.
II
The petitioner also claims that the habeas court
improperly concluded that he failed to demonstrate that
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 the
charges arising out of three separate robberies. We
decline to review this claim because of inadequate brief-
ing.
The following additional facts and procedural history
are relevant to this claim. Prior to the commencement
of the petitioner’s criminal trial, the state moved to join
the charges arising out of the Norwalk, Greenwich, and
Stamford robberies. The state asserted that the motion
should be granted because, pursuant to the standard
discussed in State v. Payne, 303 Conn. 538, 549–50, 34
A.3d 370 (2012), certain evidence in each case was cross
admissible in the other cases, and each crime was of
substantially similar severity. Specifically, as to cross
admissibility, the state asserted that evidence would
tend to demonstrate that the gun used by the petitioner
in the Greenwich robbery was the same gun that he
had used in the Stamford robbery, pieces of which were
recovered by the police near the scene of the crime
in Stamford. The state also asserted that the multiple
informants would testify that the petitioner admitted
to all three crimes.
The petitioner objected to the motion for joinder on
the grounds that (1) the crimes in the three cases were
not of the same severity because only the Norwalk
robbery resulted in the death of a store clerk, (2) the
cases involved different witnesses, and (3) there was
no evidence that the gun used by the shooter in the
Norwalk and Greenwich robberies was the same.
After reviewing the parties’ briefs and hearing oral
argument, the trial court granted the state’s motion for
joinder. The court found that the petitioner would not
be prejudiced by joinder and that some evidence from
each case was cross admissible in the other cases. Spe-
cifically, the court stated that ‘‘[t]hese crimes are all
connected via either physical evidence or inculpatory
admissions made by the [petitioner].’’
The petitioner, represented by Foster, subsequently
appealed his conviction in this case. Foster did not raise
a claim on appeal that the trial court improperly granted
the state’s motion for joinder. Our Supreme Court
affirmed the judgments of conviction. State v. Leconte,
supra, 320 Conn. 519.
At his habeas trial, the petitioner did not call Foster
as a witness to explain why he chose not to raise the
joinder issue on appeal or why he chose to focus on
the issues he did in fact raise on direct appeal. The
petitioner did call an expert witness, Attorney Frank
Riccio, to testify about issues that included joinder,
but Riccio did not opine on the reasonableness of the
decision by Foster not to challenge the court’s ruling
regarding joinder.
On the basis of this dearth of evidence, the habeas
court concluded that the petitioner had failed to demon-
strate deficient performance by Foster or that he had
been prejudiced by Foster’s decision not to raise the
issue of joinder on appeal. Specifically, the habeas court
noted the lack of evidence regarding Foster’s strategic
considerations in choosing to raise issues other than
joinder and, thus, concluded that the petitioner had
failed to overcome the well established presumption
that counsel’s decision was a reasonable strategic deter-
mination that falls within the bounds of competent per-
formance. Additionally, the habeas court concluded
that, because of the cross admissibility of evidence in
the three cases, the petitioner failed to demonstrate a
reasonable probability that the outcome of the appeal
would have been different if Foster had raised the join-
der issue on appeal.
The standard of review applicable to the habeas
court’s determinations regarding whether the petitioner
received ineffective assistance from his appellate coun-
sel is identical to the standard of review discussed in
part I of this opinion regarding trial counsel, and we
need not repeat it here. With respect to ineffective assis-
tance claims brought against appellate counsel, this
court recently stated: ‘‘The two-pronged test set forth
in Strickland equally applies to claims of ineffective
assistance of appellate counsel. . . . Although appel-
late counsel must provide effective assistance, he [or
she] is not under an obligation to raise every conceiv-
able issue. A brief that raises every colorable issue runs
the risk of burying good arguments . . . in a verbal
mound made up of strong and weak contentions. . . .
Indeed, [e]xperienced advocates since time beyond
memory have emphasized the importance of winnowing
out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.
. . . Most cases present only one, two, or three signifi-
cant questions. . . . The effect of adding weak argu-
ments will be to dilute the force of stronger ones. . . .
Finally, [i]f the issues not raised by his appellate counsel
lack merit, [the petitioner] cannot sustain even the first
part of this dual burden since the failure to pursue
unmeritorious claims cannot be considered conduct
falling below the level of reasonably competent repre-
sentation. . . . To establish that the petitioner was
prejudiced by appellate counsel’s ineffective assistance,
the petitioner must show that, but for the ineffective
assistance, there is a reasonable probability that, if the
issue were brought before us on direct appeal, the peti-
tioner would have prevailed. . . . To ascertain
whether the petitioner can demonstrate such a probabil-
ity, we must consider the merits of the underlying
claim.’’ (Citations omitted; internal quotation marks
omitted.) Davis v. Commissioner of Correction, 198
Conn. App. 345, 354–55, 233 A.3d 1106, cert. denied,
335 Conn. 948, 238 A.3d 18 (2020).
We next briefly review the law of joinder of criminal
charges. ‘‘[W]hen charges are set forth in separate infor-
mations, presumably because they are not of the same
character, and the state has moved in the trial court to
join the multiple informations for trial, the state bears
the burden of proving that the defendant will not be
substantially prejudiced by joinder pursuant to Practice
Book § 41-19. The state may satisfy this burden by prov-
ing, by a preponderance of the evidence, either that the
evidence in the cases is cross admissible or that the
defendant will not be unfairly prejudiced pursuant to
the Boscarino factors.’’2 (Footnote omitted.) State v.
Payne, supra, 303 Conn. 549–50.
‘‘Importantly, although our Supreme Court rejected
the presumption in favor of joinder, the court did not
alter the remainder of the substantive law that Connecti-
cut courts apply when determining whether joinder is
appropriate. . . . In determining whether joinder is
appropriate, it is well established that where the evi-
dence in one case is cross admissible at the trial of
another case, the defendant will not be substantially
prejudiced by joinder. . . . Our case law is clear that a
court considering joinder need not apply the Boscarino
factors if evidence in the cases is cross admissible.’’
(Citations omitted; internal quotation marks omitted.)
Cancel v. Commissioner of Correction, 189 Conn. App.
667, 680–82, 208 A.3d 1256, cert. denied, 332 Conn. 908,
209 A.3d 644 (2019).
On appeal, the petitioner claims that the habeas court
improperly rejected his claim of ineffective assistance
of appellate counsel because application of the Boscar-
ino factors to the facts and circumstances of this case
demonstrates that he was substantially prejudiced by
the joinder of his three cases. The petitioner, in his
brief on appeal, however, fails to recognize that applica-
tion of the Boscarino factors is unnecessary if evidence
from the joined cases is cross admissible or to discuss
substantively why the evidence in the three cases was
not cross admissible. Indeed, the petitioner’s brief con-
tains no discussion, analysis or application of any of
the evidentiary principles that would dictate whether
certain evidence in one case would be cross admissible
in the other cases. See Villafane v. Commissioner of
Correction, supra, 190 Conn. App. 579 (appellate courts
are not required to review issues improperly presented
through inadequate briefing). Specifically, the petition-
er’s brief does not analyze the cross admissibility of the
inculpatory statements he made to various informants
regarding his participation in all three robberies or the
ballistics evidence that tended to show that the gun he
used in, and that was recovered from, the Stamford
robbery was also used to shoot the victim in the Green-
wich robbery. Because the petitioner has failed to brief
this issue, it is unnecessary to consider the arguments
he makes regarding application of the Boscarino fac-
tors. Accordingly, we decline to review his claim that
the habeas court improperly concluded that he failed to
demonstrate ineffective assistance of appellate counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petitioner certification to appeal.
2
‘‘In State v. Boscarino, [204 Conn. 714, 722–24, 529 A.2d 1260 (1987)],
our Supreme Court first articulated the factors that a trial court must con-
sider when deciding whether it is appropriate to join . . . separate yet
factually related cases for trial when evidence in the cases is not cross
admissible. The court determined that joinder of such cases is unduly
prejudicial to the defendant and, thus, improper, if (1) the cases do not
involve discrete, easily distinguishable factual scenarios, (2) the crimes in the
cases were of a particularly violent nature or concerned brutal or shocking
conduct on the defendant’s part, and (3) the trial was lengthy and complex.’’
(Emphasis added.) Cancel v. Commissioner of Correction, 189 Conn. App.
667, 679 n.5, 208 A.3d 1256, cert. denied, 332 Conn. 908, 209 A.3d 644 (2019).