White v. Commissioner of Correction ( 2021 )

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SOLOMON WHITE v. COMMISSIONER
OF CORRECTION
(AC 43988)
Bright, C. J., and Suarez and Sullivan, Js.
Syllabus
The petitioner, who had previously been convicted of various crimes in
connection with the shooting death of the victim, sought a writ of habeas
corpus, claiming ineffective assistance of his previous habeas counsel,
V. Following an evidentiary hearing, the habeas court denied the petition,
concluding that the petitioner had failed to demonstrate that V had acted
deficiently in failing to procure the appearance and testimony of two
witnesses at his first habeas trial—D, who the petitioner claimed had
perjured her testimony at his criminal trial, and S, whose testimony
both allegedly supported the petitioner’s claim that his trial counsel was
ineffective and who could have impeached the testimony of eyewitnesses
to the shooting at his criminal trial. Thereafter, the habeas court denied
the petition for certification to appeal, and the petitioner appealed to
this court. Held that the habeas court did not abuse its discretion in
denying the petition for certification to appeal, the petitioner having
failed to demonstrate that the issues raised in his petition were debatable
among jurists of reason, that a court could have resolved the issues
in a different manner or that the questions were adequate to deserve
encouragement to proceed further: the petitioner failed to demonstrate
that V’s decision not to call D as a witness at his first habeas trial was
not reasonably competent or outside of the wide range of competence
displayed by attorneys with ordinary training and skills, as V completed
a reasonable investigation by reviewing D’s testimony at the petitioner’s
criminal trial, sending his investigator to D’s house and serving her with
a subpoena, and V provided an adequate explanation for his decision
not to call D as a witness, as D had testified against the petitioner at
his criminal trial, V believed D’s testimony at the criminal trial to be
credible, D stated unambiguously that she would not testify at the habeas
trial, and V had no idea of what D might say if he compelled her testimony
because she had refused to speak to his investigator for longer than ten
minutes; moreover, the petitioner failed to present affirmative evidence
that D’s testimony would have been helpful to his case, as D invoked
her fifth amendment privilege and refused to testify at his second habeas
trial; furthermore, the petitioner failed to establish that, had V called S
as a witness at the first habeas trial, there was a reasonable probability
that the outcome would have been different, as S was not present when
the shooting took place and did not witness any of the events leading
up to the shooting or the shooting itself, and S’s testimony at the second
habeas trial that he did not witness the petitioner and the victim arguing
on the day of the shooting and that the petitioner and the victim were
friendly would have had an isolated, trivial effect on the inferences that
could be drawn from the evidence, as there was ample evidence in the
record supporting the verdict in the petitioner’s criminal trial, including
the testimony of two witnesses that they saw the petitioner shoot the
victim, which was corroborated by a third witness’ testimony that D
exclaimed immediately after the shooting that the petitioner shot the
victim, the petitioner fled the scene of the shooting and thereafter evaded
the police for approximately one month, and evidence that, while in
prison, the petitioner wrote letters to a witness attempting to persuade
her not to testify at his probable cause hearing, to lie to the police and
to encourage others to lie to the police.
Argued September 7—officially released December 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, Newson, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Melissa E. Patterson, senior assistant state’s attor-
ney, with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Kelly A. Masi, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
SULLIVAN, J. The petitioner, Solomon White, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his second petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion in denying his petition for certifica-
tion to appeal and (2) improperly denied his petition
for a writ of habeas corpus, in which he claimed that
his first habeas counsel rendered ineffective assistance.
Because the petitioner has not demonstrated that the
habeas court abused its discretion in denying the peti-
tion for certification, we dismiss the appeal.
The petitioner was charged with murder in violation
of General Statutes § 53a-54a, criminal use of a firearm
in violation of General Statutes § 53a-216 (a), tampering
with a witness in violation of General Statutes § 53a-
151 (a), conspiracy to commit tampering with a witness
in violation of General Statutes §§ 53a-48 and 53a-151
(a), bribery of a witness in violation of General Statutes
§ 53a-149 (a), and conspiracy to commit bribery of a
witness in violation of §§ 53a-48 and 53a-149 (a).
The following facts were set forth by this court in
the petitioner’s direct appeal from his conviction. ‘‘On
Saturday, August 27, 2005, a local church sponsored a
‘Stop the Violence’ block party on Vine Street in Hart-
ford. Both the [petitioner] and Keith Carter, the victim,
attended the block party, where they argued. After the
block party, several people went to an apartment build-
ing located at 46-48 Vine Street. The [petitioner] lived
in an apartment on the first floor of 46-48 Vine Street
with his girlfriend, Latasha Drummond.
‘‘Shortly after 9:15 p.m. that evening, several people
were gathered in the common hallway on the first floor
of 46-48 Vine Street. Drummond was in the apartment
she shared with the [petitioner]. Drummond heard
someone tell the victim to ‘get out of [the petitioner’s]
face.’ A neighbor, Dela Tindal, was in her apartment
located across the hall from the apartment shared by
the [petitioner] and Drummond. Tindal heard the [peti-
tioner] and the victim arguing in the hallway. Tindal
then heard the [petitioner] say, ‘are you still talkin’ shit?
Don’t make me go get my pistol,’ and then Tindal heard
the [petitioner’s] apartment door open and close.
Shortly thereafter, Tindal heard the [petitioner] say:
‘You still talking shit.’ Tindal then looked out of her
apartment and saw the two men arguing, standing face-
to-face. Tindal then saw the [petitioner] extend his hand
and shoot the victim. Tindal could see sparks coming
from the barrel of the gun, and the sound was ‘like a
. . . loud firecracker.’ Upon hearing the gunshot,
Drummond looked out into the hallway where she saw
the victim fall to the floor and the [petitioner] with a
gun in his hand. The [petitioner] then ran out of the
building. Drummond went back inside her apartment
to get her keys and then ran out of the building.
‘‘Outside of the building, Drummond encountered her
neighbor, Courtney Croome. Drummond was crying and
shaking and told Croome, ‘He killed him. He killed him.’
‘‘Following the incident, Drummond visited the [peti-
tioner] at an abandoned apartment where he was hiding
from the police. Drummond saw the [petitioner] wrap
the gun he had used to shoot the victim in a diaper and
throw it in the trash, claiming that the police could not
charge him if they did not have the murder weapon.
Drummond described the weapon as a ‘black, old,
rusty gun.’
‘‘The [petitioner] was located and arrested approxi-
mately one month following the incident. While in
prison, the [petitioner] wrote three letters to Tindal,
asking that she not appear at his probable cause hear-
ing, that she lie to the police and that she ask others
to lie for him.’’ (Footnote omitted.) State v. White, 127
Conn. App. 846, 847–49, 17 A.3d 72, cert. denied, 302
Conn. 911, 27 A.3d 371 (2011).
Attorney William O’Connor of the Office of the Public
Defender represented the petitioner during the criminal
trial. Following a jury trial, the petitioner was convicted
of all charges and sentenced to a total effective term
of sixty years of imprisonment. This court affirmed the
judgment of conviction on appeal. Id., 858.
The petitioner then filed his first petition for a writ
of habeas corpus seeking to collaterally attack his con-
viction. In his first habeas petition, the petitioner alleged
that O’Connor provided ineffective assistance during
the petitioner’s criminal trial. The petitioner was repre-
sented by Attorney Joseph Visone, assigned counsel
by the Office of the Public Defender, throughout the
proceedings associated with the first habeas petition.
The first habeas petition was denied following a trial
on the merits, and this court dismissed the petitioner’s
appeal therefrom. White v. Commissioner of Correc-
tion, 168 Conn. App. 903, 149 A.3d 503 (2016), cert.
denied, 325 Conn. 924, 160 A.3d 1067 (2017).
On July 12, 2018, the petitioner filed his second peti-
tion for a writ of habeas corpus, which is the subject
of this appeal. In his amended petition for a writ of
habeas corpus, the petitioner claimed that his first
habeas counsel, Visone, provided ineffective assis-
tance.1 Specifically, the petitioner alleged that Visone
rendered ineffective assistance by failing to procure the
appearance and testimony of (1) Drummond to support
the petitioner’s claim that her testimony at the petition-
er’s criminal trial was perjured and (2) David Sims,
the victim’s nephew, to support the petitioner’s claim,
raised in his first habeas petition, that his trial counsel
was ineffective for failing to call Sims as a witness
during the petitioner’s criminal trial to prove that the
petitioner and the victim had been together and friendly
with each other the entire day, including immediately
before the victim was shot.
Following a trial on the merits, the habeas court con-
cluded that the petitioner failed to prove his claims
of ineffective assistance of prior habeas counsel and,
accordingly, rendered judgment denying the petition
for a writ of habeas corpus. Thereafter, the petitioner
filed a petition for certification to appeal from the judg-
ment denying his petition for a writ of habeas corpus,
wherein he claimed that the habeas court erred in failing
to find that the petitioner proved ineffective assistance
by trial and habeas counsel. The habeas court denied
the petition for certification to appeal. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
On appeal the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal from the denial of his petition for a writ
of habeas corpus. We first set forth our standard of
review and the law applicable to the claims on appeal.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Citation omitted; internal quotation
marks omitted.) Wright v. Commissioner of Correc-
tion, 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020),
cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021).
The petitioner’s underlying claim in the present
appeal is that the habeas court improperly concluded
that Visone did not provide ineffective assistance. ‘‘A
claim of ineffective assistance of counsel as enunciated
in Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], consists of two
components: a performance prong and a prejudice
prong.’’ (Internal quotation marks omitted.) Figueroa
v. Commissioner of Correction, 202 Conn. App. 54, 63,
244 A.3d 149, cert. denied, 336 Conn. 926, 246 A.3d
986 (2021). ‘‘To satisfy the performance prong . . . the
petitioner must demonstrate that his attorney’s repre-
sentation was not reasonably competent or within the
range of competence displayed by lawyers with ordi-
nary training and skill in the criminal law. . . . To sat-
isfy the prejudice prong, a claimant must demonstrate
that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.’’ (Citation omitted.) Hender-
son v. Commissioner of Correction, 129 Conn. App.
188, 193, 19 A.3d 705, cert. denied, 303 Conn. 901, 31
A.3d 1177 (2011).
‘‘A petitioner’s claim will succeed only if both prongs
are satisfied. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unworkable. . . . A court can
find against a petitioner, with respect to a claim of
ineffective assistance of counsel, on either the perfor-
mance prong or the prejudice prong, whichever is eas-
ier.’’ (Internal quotation marks omitted.) Figueroa v.
Commissioner of Correction, supra, 202 Conn. App. 64.
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834, 613
A.2d 818 (1992).’’ (Internal quotation marks omitted.)
Harris v. Commissioner of Correction, 191 Conn. App.
238, 246, 214 A.3d 422, cert. denied, 333 Conn. 919, 217
A.3d 1 (2019). ‘‘To prevail on a claim of ineffective
assistance of habeas counsel that is predicated on the
ineffective assistance of trial counsel, a petitioner must
demonstrate that both trial and habeas counsel were
ineffective. . . . [When] applied to a claim of ineffec-
tive assistance of prior habeas counsel, the Strickland
[v. Washington, supra, 466 U.S. 687] standard requires
the petitioner to demonstrate that his prior habeas
counsel’s performance was ineffective and that this
ineffectiveness prejudiced the petitioner’s prior habeas
proceeding. . . . [T]he petitioner will have to prove
that one or both of the prior habeas counsel, in present-
ing his claims, was ineffective and that effective repre-
sentation by habeas counsel establishes a reasonable
probability that the habeas court would have found that
he was entitled to reversal of the conviction and a new
trial . . . . A petitioner who claims ineffective assis-
tance of habeas counsel on the basis of ineffective assis-
tance of trial counsel must satisfy Strickland twice;
that is, he must show that his appointed habeas counsel
and his trial counsel were ineffective.’’ (Citations omit-
ted; internal quotation marks omitted.) Britton v. Com-
missioner of Correction, 185 Conn. App. 388, 420, 197
A.3d 895 (2018), cert. denied, 337 Conn. 901, 252 A.3d
362 (2021). ‘‘We have characterized this burden as pre-
senting a herculean task . . . .’’ (Internal quotation
marks omitted.) Sanchez v. Commissioner of Correc-
tion, 203 Conn. App. 752, 774, 250 A.3d 731, cert. denied,
336 Conn. 946, 251 A.3d 77 (2021).
I
The petitioner first claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal with respect to his claim that Visone
provided ineffective assistance by failing, at the first
habeas trial, to procure the testimony of Drummond,
who, at the criminal trial, had testified that the peti-
tioner shot the victim.2 Specifically, he claims that the
habeas court improperly concluded that he failed to
prove that Visone rendered deficient performance by
failing to procure the appearance of Drummond in sup-
port of the petitioner’s claim that her testimony at the
petitioner’s criminal trial was perjured. The petitioner
argues that Visone’s decision not to attempt to compel
Drummond’s appearance as a witness was unreason-
able and prejudiced him because his conviction rested,
in large part, on her testimony. We disagree.
The following evidence and testimony were pre-
sented to the habeas court at the second habeas trial
at which the petitioner was represented by Attorney
Andrew Marcucci. When Visone was questioned at a
deposition3 as to why he did not call Drummond as a
witness at the first habeas trial, Visone stated that when
one of his investigators went to Drummond’s house and
gave her a subpoena, she threw him out and said, ‘‘ ‘I
am not going to court.’ ’’ Visone explained that the fact
that Drummond did not want to testify indicated to him
that she was not going to change her story or recant
her previous testimony.4
Visone further testified at the deposition that, even
if Drummond had indicated a desire to recant, as an
officer of the court, he ‘‘would have had to alert the
judge to appoint counsel to her. And you know what
happens after that.’’ Visone also stated that, although
credibility is a question for the finder of fact, it is also
an issue attorneys must consider when making tactical
decisions as to whether to put a witness on the stand.
Visone explained why he believed that Drummond’s
testimony at the petitioner’s criminal trial was credible
and why he therefore decided not to compel Drum-
mond’s testimony in an attempt to prove that her origi-
nal testimony was perjured: ‘‘The reason I believed . . .
Drummond was not lying is because when she ran out
of the building—and this is perfect excited utterance—
she said, ‘He shot him, he shot him.’ . . . Liars would
say ‘[The petitioner] shot him, [the petitioner] shot him,
[the petitioner] shot him,’ because they’re making it up.
. . . [T]hat, to me, was a very powerful indicia of relia-
bility. Because she didn’t use—she had to have . . .
[Croome] get it out of her, ‘Who are you talking about?’
. . . It was her testimony that she said, ‘[The petitioner]
shot him.’ ’’
At the petitioner’s second habeas trial Marcucci
called Drummond to testify, and Drummond was placed
under oath. Immediately thereafter, the court advised
Drummond of her fifth amendment right against self-
incrimination and that, if she indicated that she had
previously testified falsely, she could expose herself to
a perjury charge. Drummond then invoked her fifth
amendment right.
Marcucci next called an investigator, Julio Ortiz, to
the witness stand. Ortiz had been hired by Marcucci in
connection with the petitioner’s second habeas petition.
Ortiz testified that he was instructed to locate and inter-
view Drummond. According to Ortiz, he located Drum-
mond and was able to speak with her for about ten
minutes.5 Ortiz described Drummond as guarded and
apprehensive and stated that she seemed unwilling to
cooperate with the investigation. When Ortiz asked
Drummond where she was when the shooting occurred,
according to Ortiz, Drummond stated that she was out-
side of her apartment, in the hallway of her apartment
building. Drummond also stated that she had never seen
the petitioner with a gun and that she did not see a gun
at the time of the shooting. Ortiz also asked Drummond
if she had ever told Croome, shortly after the shooting
occurred, that the petitioner shot the victim, to which
Drummond responded that Croome had lied. Ortiz fur-
ther testified that Drummond claimed that the peti-
tioner never told her that he shot the victim. Ortiz stated
that Drummond also said she did not want to testify in
this case.
The habeas court found the following facts, on the
basis of the evidence, after the conclusion of the habeas
trial. ‘‘In short, evidence of the statements allegedly
made by [Drummond] were too unreliable to be given
much credit. When speaking to the petitioner’s investi-
gator, she is alleged to have admitted that she was
not in her apartment when the shooting occurred, but
outside in front of the building, that she did not see a
gun in the petitioner’s hand at the time of the shooting,
and denied that she made any statement about wit-
nessing the shooting to . . . Croome. She also alleg-
edly denied meeting the petitioner several days later
where he allegedly admitted to the shooting. When
speaking to the state’s inspector, however, [Drummond]
supposedly made contradictory statements, claiming
that the petitioner’s investigator ‘wanted me to change
my story, but I was not going to change my story.’ . . .
[Drummond] contradicting herself, and her general lack
of credibility, is nothing new. . . . [Visone] testified
that he sent his investigator out to speak with [Drum-
mond], but she refused to speak with him and was
adamant that she ‘was not coming to court to testify.’
Given her refusal to speak to his investigator, [Visone]
presumed she was not going to be helpful to his client,
and chose not to call her as a witness.’’ (Citations omit-
ted; footnote omitted.)
The habeas court held that Visone did not provide
ineffective assistance because it was not ‘‘overtly unrea-
sonable for . . . Visone to make the decision not to
call a witness who testified against his client in the
underlying trial, appeared to remain hostile to his cause,
and where he had no idea what the witness might say.’’
We agree with the habeas court’s conclusion that,
because Visone’s failure to procure the testimony of
Drummond was not unreasonable, the petitioner failed
to satisfy the performance prong of the Strickland anal-
ysis.
To satisfy the performance prong of the Strickland
analysis, the petitioner must show that counsel’s repre-
sentation fell below an objective standard of reason-
ableness. Strickland v. Washington, supra, 466 U.S. 688.
Our Supreme Court has stated that ‘‘the performance
inquiry must be whether counsel’s assistance was rea-
sonable considering all the circumstances, and that
[j]udicial scrutiny of counsel’s performance must be
highly deferential.’’ (Internal quotation marks omitted.)
Figueroa v. Commissioner of Correction, supra, 202
Conn. App. 63. A reviewing court ‘‘must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance
. . . .’’ (Internal quotation marks omitted.) Johnson v.
Commissioner of Correction, 330 Conn. 520, 538–39,
198 A.3d 52 (2019); see also Meletrich v. Commissioner
of Correction, 332 Conn. 615, 632, 212 A.3d 678 (2019)
(applying strong presumption that counsel’s strategic
decisions were reasonable).
When a petitioner alleges that counsel has provided
ineffective assistance on the basis of counsel’s failure
to call a witness, ‘‘[d]efense counsel will be deemed
ineffective only when it is shown that a defendant has
informed his attorney of the existence of the witness
and that the attorney, without a reasonable investiga-
tion and without adequate explanation, failed to call
the witness at trial. The reasonableness of an investiga-
tion must be evaluated not through hindsight but from
the perspective of the attorney when he was conducting
it. . . . Furthermore, [t]he failure of defense counsel
to call a potential defense witness does not constitute
ineffective assistance unless there is some showing that
the testimony would have been helpful in establishing
the asserted defense.’’ (Emphasis in original; internal
quotation marks omitted.) Jordan v. Commissioner of
Correction, 197 Conn. App. 822, 833, 234 A.3d 78 (2020),
aff’d, Conn. , A.3d (2021); see also Mele-
trich v. Commissioner of Correction, supra, 332 Conn.
628 (‘‘decision whether to call a particular witness falls
into the realm of trial strategy, which is typically left
to the discretion of trial counsel’’ (internal quotation
marks omitted)). Counsel does not engage in deficient
performance by failing to ‘‘call witnesses to testify in
instances in which jurors likely would have found the
testimony unreliable, inconsistent, or unpersuasive in
light of the state’s evidence against the petitioner.’’ Jor-
dan v. Commissioner of Correction, supra, 868.
In the present case, Visone completed a reasonable
investigation; see id., 833; by reviewing Drummond’s
testimony at the petitioner’s criminal trial, sending his
investigator to Drummond’s house, and serving her with
a subpoena. As determined by the habeas court, Visone
also provided an adequate explanation for his decision
not to call Drummond as a witness—Drummond had
testified against the petitioner at his criminal trial,
Visone believed her testimony at the petitioner’s crimi-
nal trial to be credible, Drummond stated unambigu-
ously that she would not testify at the habeas trial, and
Visone had no way of knowing what Drummond might
say if he was able to compel her testimony because she
had refused to speak to his investigator for longer than
ten minutes. See id. Furthermore, because Drummond
invoked her fifth amendment privilege and refused to
testify at the petitioner’s second habeas trial, the peti-
tioner has presented no affirmative evidence that Drum-
mond’s testimony would have been helpful to his case.
See Gaines v. Commissioner of Correction, 306 Conn.
664, 681, 51 A.3d 948 (2012) (‘‘[t]he failure of defense
counsel to call a potential defense witness does not
constitute ineffective assistance unless there is some
showing that the testimony would have been helpful in
establishing the asserted defense’’ (internal quotation
marks omitted)).6 After considering all of the circum-
stances, we cannot conclude that Visone’s decision not
to call Drummond as a witness was unreasonable, as
the decision concerned a matter ‘‘of trial strategy, which
is typically left to the discretion of trial counsel . . . .’’
(Internal quotation marks omitted.) Meletrich v. Com-
missioner of Correction, supra, 332 Conn. 628.
Accordingly, because the petitioner failed to establish
that Visone’s decision not to call Drummond as a wit-
ness at the petitioner’s first habeas trial was not reason-
ably competent or outside the wide range of compe-
tence displayed by lawyers with ordinary training and
skills;7 see Johnson v. Commissioner of Correction,
supra, 330 Conn. 539; the petitioner has failed to demon-
strate that the habeas court abused its discretion by
denying his petition for certification to appeal with
respect to this claim.
II
The petitioner also claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal with respect to his claim that Visone
rendered ineffective assistance by failing to procure the
testimony of Sims at the habeas trial in support of the
petitioner’s claim that his trial counsel, O’Connor, was
ineffective for failing to call Sims as a witness at his
criminal trial. The petitioner claims that Visone’s deci-
sion not to call Sims as a witness was unreasonable
and prejudiced him because, according to the peti-
tioner, Sims’ testimony would have ‘‘contradicted and/
or impeached the testimony of both . . . [Tindal and
Drummond] and would have called into question any
motive on the petitioner’s part to cause the death of
the [victim].’’ We disagree.
The following evidence and testimony were pre-
sented to the habeas court at the habeas trial. According
to Sims’ testimony at the second habeas trial, he was
never subpoenaed and did not testify at the petitioner’s
underlying criminal trial, nor did he testify at the peti-
tioner’s first habeas trial. According to Visone’s deposi-
tion, the petitioner told him that Sims would testify that
Sims went to the Vine Street apartments around 10 a.m.
on the morning of the shooting to visit his uncle, the
victim, and that Sims did not witness any fighting or
arguing between the petitioner and the victim.
Visone testified that his investigator went to Sims’
house a total of seven times and spoke with him on the
phone. Additionally, according to Visone, Sims’ stepfa-
ther was given a subpoena at Sims’ residence after he
told the investigator: ‘‘ ‘Don’t come here anymore
because [Sims] doesn’t want to talk to you.’ ’’ When
Visone spoke with Sims on the phone, Sims said there
was ‘‘ ‘nothing [he] could say at this trial that would be
of any benefit to [the petitioner].’ ’’
Visone subpoenaed and disclosed Sims as a witness at
the petitioner’s first habeas trial. However, Sims never
appeared to testify. Visone testified: ‘‘I went to go look
for him in the hallway because I told him it’s a subpoena.
It’s a court order. ‘You have to show up.’ . . . But I
knew that if he showed up, and I talked to him again,
and he said the same thing to me in the courthouse
that he said to me on the phone, I’d have been a fool
to put him on the witness stand.’’
Visone testified at his deposition that he did not con-
sider requesting a continuance because ‘‘that would
have been unethical. I knew what he was going to say.
He was going to say that ‘[t]here’s nothing I can say
that’s going to help the [petitioner],’ and I would have
to disclose that to the judge before the judge would
take the extraordinary step of issuing an arrest or a
capias on a witness.’’ Visone was asked whether he
believed that the petitioner ‘‘had a strong habeas case
without [Sims’] testimony,’’ to which Visone replied,
‘‘He had no case.’’ When asked to clarify this statement
on cross-examination, Visone stated: ‘‘[Sims], if he had
testified, according to [the petitioner] what he would
have testified to is that they met in the morning. It was
somebody’s birthday, and they were going to have a
drink together. There was a block party, so there was
a lot of drinking going on. And I believe I said to [the
petitioner], ‘Well, just because—you know, even if he
said you weren’t fighting in the morning, that’s ten
o’clock in the morning, the [victim] was shot at ten
o’clock at night. People, after a lot of drinking, just
because you’re not arguing with somebody in the morn-
ing doesn’t preclude you from arguing with them at
night.’ So, you know, in the scheme of things, it’s you
know . . . there’s nothing there. . . . I mean, basi-
cally, it was two women who testified they were eyewit-
nesses to the shooting. They were both extensively
cross-examined and impeached at trial by . . . O’Con-
nor. I believe . . . Tindal was in the witness protection
program for the state’s attorney’s office. She was
impeached on that. So they were both thoroughly
impeached. The fact that—again, very important, is that
the jury knew that it took the police a month to find
[the petitioner], because against his attorney’s advice,
he took the witness stand and testified in the criminal
trial. So the jury knew that he was gone for a month.
Okay? And when you’re gone for a month, and they
can’t find you, when they knew where he was living
. . . which was Vine Street. That’s where the murder
happened. So they knew from day one he was on Vine
Street, and then it takes a month to find him? That’s
because he’s hiding.’’
Sims, however, did testify at the second habeas trial.
According to Sims’ testimony, in 2005, Sims was close
with both the petitioner and the victim, who was his
uncle. Sims also testified that he and the petitioner
had been friends since childhood. On the day of the
shooting, Sims testified that he, the petitioner, and the
victim were together ‘‘[j]ust hanging out’’ and ‘‘were
walking around [the] neighborhood.’’ According to
Sims, the three men met up at some point around 4
p.m. at the Vine Street apartment complex to celebrate
Sims’ birthday. Sims testified that he, the petitioner, and
the victim were having drinks outside of the apartment
complex for the majority of the evening, with the excep-
tion of a few trips to the package store. Sims stated
that the petitioner and the victim were friendly toward
each other and that he did not witness the two arguing
or acting in a hostile manner toward each other while
he was with them. Sims testified that he left the Vine
Street apartments at around 7 or 8 p.m. Then, about
three minutes after leaving the apartments, Sims
received a call from his aunt, who told him that his
uncle, the victim, had been shot. Sims testified that ‘‘[i]t
was ridiculous. I’m around the corner. Seriously, around
the corner.’’
The habeas court found the following facts, on the
basis of the evidence, after the conclusion of the habeas
trial. ‘‘Although [Sims] did testify before this court, it
is not actually clear what significance the petitioner
claims his testimony would have had to the outcome
of the original trial. While he was with the petitioner
most of the day on the day the incident occurred, he
and the petitioner separated prior to the shooting, and
he did not witness any of the incidents directly related
to the dispute the two men had in the hallway or the
shooting. At best, his testimony, general background
information that he had ‘never seen the petitioner and
[the] victim exchange harsh words,’ and that the peti-
tioner generally had a ‘good demeanor,’ could have been
considered as character evidence, but was hardly signif-
icant enough that there is any real probability that
including it would have resulted in a more favorable
outcome for the petitioner.’’
Accordingly, the habeas court concluded that
Visone’s failure to call Sims as a witness did not preju-
dice the petitioner because Sims did not witness any
of the incidents directly related to the shooting. We
agree with the habeas court’s conclusion that the peti-
tioner failed to establish that he was prejudiced by
Visone’s failure to procure the testimony of Sims at the
first habeas trial.
‘‘An error by counsel, even if professionally unreason-
able, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the
judgment. . . . To satisfy the second prong of Strick-
land, that his counsel’s deficient performance preju-
diced his defense, the petitioner must establish that, as
a result of his trial counsel’s deficient performance,
there remains a probability sufficient to undermine con-
fidence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different. . . . In making this determination, a
court hearing an ineffectiveness claim . . . must con-
sider the totality of the evidence before the judge or
the jury. . . . Some errors will have had a pervasive
effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will
have had an isolated, trivial effect. Moreover, a verdict
or conclusion only weakly supported by the record is
more likely to have been affected by errors than one
with overwhelming record support.’’ (Internal quotation
marks omitted.) Figueroa v. Commissioner of Correc-
tion, supra, 202 Conn. App. 63–64.
Here, the petitioner has not established that, had
Visone called Sims as a witness at the first habeas trial,
there is a reasonable probability that the outcome of
his first habeas trial would have been different. As the
habeas court noted in its memorandum of decision,
Sims was not present at the Vine Street apartments
when the shooting took place. Although he allegedly
had been with the petitioner and the victim for the
majority of the day on which the incident occurred, he
left the scene of the crime prior to its occurrence. Sims
testified that he did not witness any of the events in
the hallway leading up to the shooting or the shooting
itself. Sims’ testimony that he did not witness the peti-
tioner and the victim arguing on the day of the shooting
and his testimony that the petitioner and the victim
were friendly does not create ‘‘a probability sufficient
to undermine confidence in the verdict’’; id., 63; consid-
ering the ‘‘totality of the evidence’’ that was before the
jury. Id., 64.
In the petitioner’s criminal trial, the verdict was sup-
ported by ample evidence in the record, including testi-
mony—which the jury could have found credible—from
Drummond and Tindal, who both claimed to have seen
the petitioner shoot the victim. Drummond’s testimony
was corroborated by Croome’s testimony that Drum-
mond exclaimed immediately after the victim was shot
that the petitioner did it. The jury also could have
inferred the petitioner’s guilt from his flight from the
scene after the shooting and his subsequent evasion of
the police for approximately one month. See State v.
White, supra, 127 Conn. App. 854–55. Furthermore,
there was evidence that, while in prison, the petitioner
wrote three letters to Tindal attempting to persuade
her (1) not to testify at the petitioner’s probable cause
hearing, (2) to lie to the police, and (3) to encourage
others to lie to the police. Given the totality of the
evidence in the record, the testimony of Sims, at most,
would have had an ‘‘isolated, trivial effect’’ on the infer-
ences that could be drawn from the evidence. Figueroa
v. Commissioner of Correction, supra, 202 Conn. App.
64. We therefore agree with the habeas court’s conclu-
sion that Visone’s decision not to call Sims as a witness
at the first habeas trial did not prejudice the petitioner’s
defense. We, thus, conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal as to the petitioner’s claim concerning
Visone’s failure to call Sims as a witness.
Accordingly, we conclude that, with respect to both
claims of ineffective assistance of prior habeas counsel
raised on appeal, the petitioner has failed to show that
the issues involved are debatable among jurists of rea-
son, that a court could have resolved the issues in a
different manner, or that the questions raised were ade-
quate to deserve encouragement to proceed further.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also claimed in his amended habeas petition that the state
violated his due process rights during his criminal trial by using perjured
testimony from Drummond and Tindal. The petitioner has not raised this
claim on appeal.
2
Although Drummond testified at the petitioner’s criminal trial, she did
not testify at the petitioner’s first habeas trial. Visone subpoenaed Drum-
mond and disclosed her as a witness but never called her to testify and did
not seek a capias to compel her appearance.
3
At the time of the habeas trial, Visone resided outside of Connecticut and
did not actually testify at the habeas trial. The parties, however, stipulated
to taking his deposition and allowing the transcript to be admitted as a
full exhibit.
4
At the petitioner’s criminal trial, Drummond testified that, on the night
of the shooting, she was in her apartment when she heard a noise in the
hallway, which sounded like a firecracker. When she opened her apartment
door, she saw the petitioner standing with a gun in his hand and the victim
falling to the ground. Drummond testified that she ran outside and told
Croome, ‘‘He killed him. He killed him.’’
5
After a hearsay objection from the respondent, the Commissioner of
Correction, the court determined that Drummond was ‘‘unavailable’’ and
allowed the petitioner to present statements allegedly made by her against
her penal interest when interviewed by Ortiz. See Conn. Code Evid. § 8-6
(4); see also State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980) (witness
asserting testimonial privilege is ‘‘unavailable’’ within meaning of rules of
evidence).
6
The petitioner argues that the habeas court should have drawn an infer-
ence from Drummond’s invocation of her fifth amendment right that she
did so because she did not want to admit that she perjured herself at the
petitioner’s criminal trial. Although the habeas court was permitted to draw
such an inference, it was not required to do so. In re Samantha C., 268
Conn. 614, 665, 847 A.2d 883 (2004) (explaining that adverse inferences are
ordinarily permissible in noncriminal proceedings).
7
In light of our determination that the habeas court properly determined
that the petitioner failed to establish that Visone’s performance was deficient,
we need not address the prejudice prong of the Strickland test. See Fair
v. Commissioner of Correction, 205 Conn. App. 282, 294, 256 A.3d 163 (‘‘[i]n
its analysis, a reviewing court may look to the performance prong or to the
prejudice prong [of the Strickland test], and the petitioner’s failure to prove
either is fatal to a habeas petition’’ (internal quotation marks omitted)),
cert. denied, 338 Conn. 910, 258 A.3d 1280 (2021).