******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
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 following a jury trial, of manslaughter in the first degree

with a firearm in violation of General Statutes §§ 53a55 (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 concession 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 defendant subsequently was arrested and charged in an

amended long form information with murder in violation 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 Hartford, 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 evening, 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, testified 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 intentional, and the circumstances surrounding this, I suggest, 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 deliberating 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 suggesting 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.’’ (Emphasis added.)

The court instructed the jury as to murderin violation

of § 53a-54a, and the lesser included charges of manslaughter 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. Following 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 carrying 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 predicated 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). Furthermore, ‘‘[t]he transcript of the proceedings in the trial

court allows us to examine the actions of defense counsel but not the underlying reasons for his actions. . . .

Our role . . . is not to guess at possibilities, but to

review claims based on a complete factualrecord 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.’’ (Citation 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 appropriate. 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 element 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 fairtrial; and (4)if subjectto harmless

error analysis, the state has failed to demonstrate harmlessness 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 transcripts reveal counsel’s concession of guilt, the conflicting 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 ineffective assistance of counsel claim requiring a full evidentiary 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 development 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 assistance of counsel claim and, as in Jose V., we do not know

the underlying reasons for defense counsel’s decisionmaking 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

lesserincluded charges. Absent testimony from defense

counsel and the defendant, this court could only speculate as to all of the strategic considerations and conversations 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 amendment 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 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 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 prosecution 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 integrity 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).