Posts tagged state law

No, it’s not my case; I’m still waiting for a decision. This is a case that was decided about a month ago, but I was waiting for LEXIS to put it up, so I could provide a cite.

Langston v. Warden, 2005 Conn. Super LEXIS 871 is a Habeas petition claiming ineffective assistance of counsel. As most of you know, the standard for IAC is established by Strickland – and in plea cases, as modified by Hill. However, Langston is extremely interesting because of the standard applied by the judge. As I’ll explain below, the judge applies Cronic and Florida v. Nixon.

Langston was charged with and convicted of Commission of a Felony with a Firearm, Criminal Possession of a Firearm and Robbery First. The facts were as follows:

The victim, victim’s sister and her boyfriend were driving along in a car. They wanted to score some crack, so they approached two inviduals – one of them Mr. Langston – and tried to make a deal. After the victim was asked to show the money, one of the two individuals (allegedly Mr. Langston) returned with a gun, took the money and shot the victim as he was walking away. All three identified Langston as having possessed a gun and shooting the victim. Via cross-ex, defense counsel elicited that the victim was on drugs at the time of the incident and it ocurred in an alley that wasn’t well lit and that no one actually saw Mr. Langston shoot, just saw him with a gun. The police arrested Mr. Langston at his home and found a potato with electric tape and he allegedly said it was used as a silencer for a gun.

Petitioner raised 4 claims (that does seem to be the magic number):

1. During closing, defense counsel conceded that Mr. Langston participated in the robbery – but did so without his consent.
2. Trial counsel failed to file motions in limine to preclude a photo array and other prejudicial evidence.

The other two weren’t discussed that much and were dismissed, so I won’t go into them here. The court discusses 2 first, so I’ll do that as well.

The Court quite readily dismisses the claim as to the photo array because there was no evidence introduced regarding the photo array, not even the array itself, at the habeas hearing. The Court then addresses the introduction of the potato silencer. The problem wasn’t that a police officer testified about Langston’s statement regarding the potato silencer: that was after being advised of Miranda. The problem was that

[n]o motion in limine had been filed to exclude reference to this evidence and this was coupled with a failure to object to this evidence as it was being presented. It
is also true that there was no evidence presented during this trial
that a potato silencer was used during the robbery, seen by any victim
or witness, or mentioned in any conversation during, immediately before
or after the confrontation.

CT state law is quite clear that evidence as to articles found in the possession of a defendant subsequent to the commission of the crime for which he is being charged is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence. State v. Groos, 110 Conn. 403, 407 (1930). Relying on that principle, the Court decided

It is difficult to see what possible probative value this evidence had
or what tactical strategy could have induced trial counsel not to take
steps to challenge the introduction of this evidence or move to strike
it. Defense counsel must be held to a standard that presupposes a
knowledge of evidentiary rules operative in our state for decades. It
was deficient performance under Strickland not to file a motion in limine regarding the introduction of this evidence or otherwise object to it.

That takes care of prong 1. But what of prong 2 – often the more difficult prong? Citing another case, State v. Acklin, 171 Conn. 105 (1987), the Court decided that it would be very difficult to not find prejudice, even with overwhelming evidence of guilt. "Any improper evidence that may have a tendency to excite the passions,
awaken the sympathy or influence the judgment of the jury, cannot be considered harmless." State v. Ferraro, 160 Conn. 42 (1970). The Court found that both prongs of Strickland were met and was of the opinion that Habeas relief should be granted on this claim alone.

But if he did that, we wouldn’t have the exciting Cronic and Nixon discussion! So, he went on.

In closing argument, defense counsel argued that it came down to the victim and the sister’s boyfriend, both of whom had felony records and were crack users. Counsel argued that the lighting was bad and impaired their ability to see what was in front of them. He also argued that the sister’s boyfriend said he saw Langston shoot the victim, but initially had told the police he only heard the shot. Then he conceded that the victim had been shot. Then he said the following:

"Remember, there were two people here that were involved in this, not
just Mr. Langston, but his unnamed partner who might have been his
partner in a drug deal or who might have taken the gun and decided, I’m
going to start shooting"

Ok. So he admitted Langston was involved in this. He admitted that there was a gun and he admitted that one of the two shot the victim. In the course of this train of thought counsel did say let us assume
there was a robbery and "I’ll concede for a moment a robbery did occur. " He then went on to say given this assumption maybe the second person was the shooter.

The State’s Attorney, bright as she was, picked up on this and in rebuttal argued that defense counsel conceded that Mr. Langston had the gun at some point.

At the Habeas hearing, defense counsel tried to explain that what he meant to do was create doubt in the jury’s mind and didn’t mean to explicitly concede anything. The Court didn’t like that too much:

But it was not what counsel’s intentions were that is controlling, but what he actually said.

But as the review of the closing argument indicated, defense counsel
explicitly said or implied at various points that Langston was involved
in the robbery but not the shooting:

"Remember, there were two people here that were involved in this, not just Mr. Langston . . . but his unnamed
partner . . . who might have taken the gun and decided, I’m going to
start shooting."

This theme of implying guilt of the robbery but not the shooting is woven throughout the remainder of the closing argument.

It was uncontroverted that defense counsel did not inform Mr. Langston that he was going to concede his guilt to the robbery.

Given that factual background, the Court dove right into the legal argument. It goes without saying that a criminal defendant has the right not to plead guilty and has the right to make the state prove it’s case beyond a reasonable doubt. No lawyer’s decision can deprive a defendant of these rights and these rights cannot be waived by defense counsel, Brookhand v. Janis, 384 U.S. 1, 5-8, (1966). Since there was nothing in this record to indicate that the petitioner
contemplated waiving or in fact waived these rights,  a
closing argument by defense counsel that effectively admits the
client’s guilt to a crime to which the client has pleaded innocent
without the client’s waiver or consent is necessarily deficient
performance under the standard set forth in Strickland. Having determined that there was deficient performance, the Court turned to the sticky proposition of determining prejudice under the second prong. What made it sticky was the overwhelming evidence of guilt. The Court admits that under the second prong, it can be reasonably argued that there is no prejudice.

Oddly, the Court then says,

Despite all this the court is constrained to find that the ordinary
prejudice analysis does not warrant the denial of habeas relief,
deficient performance having been found for the reasons stated. The
court relies on U.S. v Cronic and Florida v. Nixon.

Cronic, if you will remember, is the case that dealt with constructive denial of counsel.

The presumption that counsel’s assistance is essential requires us to
conclude that a trial is unfair if the accused is denied counsel at a
critical stage of his trial. Similarly, if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then
there has been a denial of rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been "denied the right of effective cross-examination" which "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Id., at 318 (citing Smith v. Illinois, 390 U.S. 129 (1968), and Brookhart v. Janis, 384 U.S. 1, 3, (1966)).

Circumstances
of that magnitude may be present on some occasions when although
counsel is available to assist the accused during trial, the likelihood
that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U.S. 45 (1932), was such a case.

However, Cronic is still inadequate because it talks in terms of presumed prejudice and guilt or innocence. That’s where Florida v. Nixon comes in. Florida conducts an analysis based on the recognition that a fundamental right is involved where defense counsel concedes defendant’s guilt. The Florida Supreme Court held

defense counsel’s statements to the jury were the "functional
equivalent of guilty plea" and therefore what was required was the
defendant client’s "affirmative, explicit acceptance of" the lawyer’s
strategy of conceding guilt.

The U.S. Supreme Court reversed based on the facts of Florida – because it was a capital case, the distinction is important – but in non-capital cases it suggested that merely informing a non-responsive client of a strategy to concede guilt
is not enough to insulate such a course of action by defense counsel
from habeas attack. In a non-capital case the Supreme Court suggested
that the Cronic rubric of presumed prejudice is more likely to
be applicable–that is, merely informing the defendant who remains
unresponsive is not enough, an explicit waiver of the right to continue
the not guilty position may have to be made by the client.

The Habeas Court concluded,

In this case there was not only an absence of any explicit and
affirmative waiver by Langston of his right to maintain his innocence
throughout the trial, including closing argument segment, but there is
nothing to indicate that at trial counsel even informed the defendant
that during closing argument he would concede guilt as to one of the
counts.

The Court reversed Mr. Langston’s convictions and remanded for a new trial.