184 Conn. App. 709
Conn. App. Ct.2018Background
- Charles Marshall was convicted after a bench trial of burglaries, first‑degree assault, and probation violations for events on July 26, 2007; six witnesses made photographic identifications and the assault victim was injured by a tire iron.
- Marshall waived a jury; trial counsel Dennis Harrigan represented Marshall and, for a brief overlapping period, had appeared for eyewitness Brian Levin in unrelated matters before moving to withdraw. Levin later testified for the state.
- Marshall filed an amended habeas petition asserting ineffective assistance of counsel premised on: (1) an actual conflict of interest from Harrigan’s prior representation of Levin; (2) counsel’s failure to object to Marshall’s exclusion from an in‑chambers discussion about that potential conflict; (3) failure to move to suppress one photographic ID (striped shirt issue); and (4) failure to oppose consolidation of two burglary cases.
- The habeas court denied relief; the court of appeals reviewed the Strickland framework and Connecticut conflict‑of‑interest jurisprudence and affirmed.
- The court found no evidence Harrigan received confidential Levin information that impaired representation, noted pending charges are public record, accepted tactical reasons for not impeaching Levin, found the record insufficient to review the in‑chambers claim, and concluded suppression and joinder challenges were reasonably declined as trial strategy.
Issues
| Issue | Plaintiff's Argument (Marshall) | Defendant's Argument (Respondent/Harrigan) | Held |
|---|---|---|---|
| 1. Actual conflict of interest from prior representation of witness | Harrigan’s prior brief representation of Levin created an actual conflict that prevented impeachment of Levin and deprived Marshall of effective counsel | No actual conflict shown: no confidential info produced; any info (pending charges) was public; counsel reasonably withdrew and had tactical reasons not to impeach | No actual conflict; habeas court properly denied relief |
| 2. Failure to object to exclusion from in‑chambers conference | Marshall was denied presence at a critical stage when counsel and judge discussed the conflict | Record unclear on scope of in‑chambers discussion; counsel recalled only limited discussion; cannot determine prejudice | Unreviewable on appeal due to insufficient record about in‑chambers scope |
| 3. Failure to move to suppress photographic ID (striped shirt) | The array was unduly suggestive because Marshall alone wore a striped shirt matching witness’s description | Counsel reasonably believed suppressing one ID would not matter given six IDs and other identifications; tactical assessment justified | No deficient performance or prejudice; suppression motion unlikely to succeed |
| 4. Failure to oppose consolidation of two burglary cases | Consolidation prejudiced Marshall because one case involved a violent assault and could spillover to the non‑violent case | Strategic choice: consolidation supported court trial strategy, clothing discrepancies and other tactics provided reasons to try both together | Counsel’s choice was reasonable trial strategy; no ineffective assistance |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged test for ineffective assistance: deficient performance and prejudice)
- Burgos‑Torres v. Commissioner of Correction, 142 Conn. App. 627 (2013) (standards for proving actual conflict of interest and when prejudice is presumed)
- State v. Marshall, 132 Conn. App. 718 (2011) (direct appeal describing facts, identifications, and trial outcome)
- State v. Lopez, 271 Conn. 724 (2004) (test for whether in‑camera proceedings are a "critical stage" requiring defendant’s presence)
- David P. v. Commissioner of Correction, 167 Conn. App. 455 (2016) (appellate review standards for habeas ineffective assistance findings)