Hazel v. Commissioner of Correction

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MICHAEL HAZEL v. COMMISSIONER OF
CORRECTION
(AC 39289)
Sheldon, Bright and Beach, Js.
Syllabus
The petitioner, who had been convicted of the crimes of attempt to commit
murder, assault in the first degree, conspiracy to commit assault in the
first degree, criminal possession of a firearm, carrying a pistol or revolver
without a permit, and criminal possession of a pistol or revolver, sought a
writ of habeas corpus, claiming that his trial counsel provided ineffective
assistance by failing to discover that the petitioner’s codefendant, W,
had resolved his related criminal case and was available to testify at
the petitioner’s criminal trial without fear of self-incrimination, and by
failing to present W’s testimony. The habeas court rendered judgment
denying the petition, from which the petitioner, on the granting of certifi-
cation, appealed to this court. Held that the habeas court properly
concluded that the petitioner was not denied the effective assistance
of counsel at his criminal trial, as he failed to prove that he was preju-
diced by his trial counsel’s performance in not presenting W’s testimony,
there not having been a reasonable probability that, had the petitioner’s
trial counsel called W to testify, the outcome of the petitioner’s trial
would have been different; there was considerable evidence against
the petitioner, including two witnesses who testified that they saw the
petitioner shoot the victim, the habeas court found that W lacked credi-
bility and his testimony would not have been helpful to the petitioner,
especially given that W, only months before, had admitted to the judge
in his own plea canvass that the petitioner was the shooter and testified,
at the habeas trial, to a factual scenario that was completely different
from that which served as the basis for his conviction when he entered
a straight guilty plea that implicated the petitioner as the shooter.
Argued December 4, 2017—officially released February 6, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Oliver, J., rendered judgment
denying the petition; thereafter, the court granted the
petition for certification to appeal, and the petitioner
appealed to this court; subsequently, the court, Oliver,
J., denied the petitioner’s motion for articulation.
Affirmed.
Michael W. Brown, for the appellant (petitioner).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Marc G. Ramia, senior assistant state’s attor-
ney, for the appellee (respondent).
Opinion
BRIGHT, J. The petitioner, Michael Hazel, appeals
following the granting of his petition for certification
to appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court erred when it
concluded that his right to the effective assistance of
counsel was not violated during his criminal trial. We
affirm the judgment of the habeas court.
The following facts, as set forth by this court in the
petitioner’s direct appeal, reasonably could have been
found by the jury at the petitioner’s criminal trial. ‘‘At
approximately 2 a.m. on July 6, 2003, the victim, David
Rogers, and his brother, Delton Rogers, went to Hor-
ace’s Market in Waterbury to purchase beer. The victim
had a stick in his hand as he entered the store. Walter
Williams asked if the victim planned to hit him with
the stick, which the victim denied. Williams, agitated
with the victim, exited the store in a hostile mood. After
obtaining the beer, the victim left the store and saw his
brother, Williams and a third person, later identified as
the [petitioner], conversing. The victim explained that
he had not threatened Williams with the stick. The vic-
tim and his brother shook hands with the [petitioner],
while Williams remained unreceptive to the conciliatory
efforts. The [petitioner] and Williams then departed.
‘‘After a period of time had elapsed, the victim and
his brother were walking to the victim’s automobile. A
motor vehicle driven at a high rate of speed approached
them. After it came to a stop, the victim observed Wil-
liams and the [petitioner] exit from the vehicle. The
victim warned his brother that ‘they might have guns’
as Williams walked toward him. The [petitioner] then
pulled a pistol from his waistband and shot the victim
several times in the stomach, legs, buttocks and arm.
The victim heard Williams instruct the [petitioner] also
to shoot Delton Rogers, but the [petitioner] focused
his attack solely on the victim. The [petitioner] and
Williams then drove off. Delton Rogers transported the
victim to a hospital.’’ (Footnotes omitted.) State v.
Hazel, 106 Conn. App. 213, 215–16, 941 A.2d 378, cert.
denied, 287 Conn. 903, 947 A.2d 343 (2008).
After a jury trial, the petitioner was convicted of
attempt to commit murder in violation of General Stat-
utes §§ 53a-54a (a) and 53a-49 (a) (2), assault in the
first degree in violation of General Statutes § 53a-59 (a)
(1), conspiracy to commit assault in the first degree in
violation of General Statutes §§ 53a-59 (a) (1) and 53a-
48 (a), criminal possession of a firearm in violation of
General Statutes (Rev. to 2003) § 53a-217 (a) (1), car-
rying a pistol or revolver without a permit in violation of
General Statutes (Rev. to 2003) § 29-35 (a) and criminal
possession of a pistol or revolver in violation of General
Statutes (Rev. to 2003) § 53a-217c (a) (1). Id., 214. The
court sentenced the petitioner to a total effective sen-
tence of twenty years to serve, followed by five years
of special parole.1 Id., 216. This court affirmed the judg-
ment of conviction on direct appeal. Id., 227.
On April 7, 2015, the petitioner filed an amended
petition for a writ of habeas corpus, claiming, in relevant
part, that his criminal trial counsel, Attorney Michael
Gannon, had provided ineffective assistance during the
petitioner’s criminal trial. The petitioner alleged, inter
alia, that Gannon had been ineffective for failing to
discover that Williams, the petitioner’s codefendant,
had resolved his related criminal case and, therefore,
was available to testify at the petitioner’s criminal trial
without fear of self-incrimination, and, ultimately, that
Gannon was ineffective for failing to present Wil-
liams’ testimony.
The court conducted a habeas trial on January 11,
2016, wherein the petitioner presented witnesses,
including Gannon and Williams. The petitioner also tes-
tified on his own behalf. The testimony and evidence
regarding those witnesses, as it relates to the issue
raised on appeal, is summarized as follows.
Gannon testified that when he was involved in mat-
ters that were headed to trial, he would have an investi-
gator, either licensed or not, assist with those cases.
He also conducted a lot of the investigating himself.
Gannon, however, had no specific memory of the inves-
tigation that was undertaken in the petitioner’s case.
When asked whether he remembered not calling any
witnesses during the trial, Gannon did not recall specifi-
cally; he did recall, however, that he believed there was
reasonable doubt in the case. Gannon also agreed that
the theory of defense was that, although the petitioner
was present at the shooting, he was not the shooter;
‘‘he wasn’t involved, and he didn’t pull the trigger
. . . .’’ When discussing the petitioner’s sister,2 who
also had been present at the scene of the shooting but
who contended that the petitioner was not the shooter,
Gannon explained that he did not call her to testify at
trial because she had placed the petitioner at the scene
with a gun in his hand, and that such testimony from
her ‘‘would be devastating.’’ Gannon also agreed that
there were other witnesses at the scene of the shooting
who also had stated that the petitioner had a gun in
his hand.
When specifically asked about whether Williams had
been available to testify at the petitioner’s trial, Gannon
testified that Williams had not been available to testify
because he had been charged with a related crime and
would plead the fifth amendment if called to testify.
Gannon then was asked if that was the reason he did
not call Williams to testify, and Gannon stated: ‘‘I don’t
know what the reason was, but that was probably one
of the reasons.’’ In response to a question concerning
whether there would have been a reason not to present
testimony from Williams, who would have stated that
someone else had been the shooter, Gannon replied:
‘‘Not at all.’’ When asked whether such testimony could
have been harmful, Gannon stated: ‘‘Depends on if he
was believed by the jury or not.’’
Williams testified that he pleaded guilty to charges
related to the petitioner’s underlying case in April, 2005.
He testified that, on the night of the shooting, he and
the petitioner had gone to a store to get medicine for
the petitioner’s wife, and the petitioner went inside
the store. The victim was outside the store ‘‘having
arguments and fights with different individuals going
into the store,’’ and he had a stick in his hand. Williams
stated that, after he went into the store, he witnessed
the petitioner having words with the victim’s brother.
When the victim went inside the store, the argument
ended; Williams and the petitioner then left to bring
the medicine home. Once they arrived at the petitioner’s
home, however, they realized that there was no medi-
cine inside the package, and they returned to the store.
Williams stated that he and the victim, who was swing-
ing a stick or a two-by-four, then had words while the
petitioner went into the store to deal with the medicine
issue. He then stated that ‘‘[w]ithin five minutes or ten
minutes of that, gunfire started going off.’’ Williams did
not know what was happening, and he ran toward the
petitioner’s car. On his right, he saw a man ‘‘with dreads
that was doing the shooting.’’ The petitioner then joined
Williams in the car, and they drove away.
Williams also testified that he was questioned by the
police the following day. He stated that the officers
told him that he was being arrested in relation to the
shooting and that the petitioner had shot the victim.
Williams then testified that the petitioner ‘‘didn’t have
a gun. Not one time did he brandish a gun. At the same
time we [were] getting inside the car, there was still
gunfire going off. So, he didn’t have a gun.’’3
The petitioner’s attorney asked Williams whether he
had spoken to Gannon or an investigator from Gannon’s
office about this case, and Williams said that he had
spoken with Gannon early in the case but that he had
never spoken to an investigator. He also testified that
he had told Gannon his version of events. Williams
acknowledged that, by the time of the petitioner’s crimi-
nal trial in 2005, his own criminal case had been resolved
with a guilty plea to charges of conspiracy to commit
assault in the first degree and accessory to commit
assault in the first degree; he was living in Manhattan
and would have testified for the petitioner if he had
been asked. Williams explained that he initially had
been offered a twenty-five year prison sentence, but
that, after negotiations, it was bargained down to no
jail time; ‘‘I took an exit and I ran.’’ A transcript of
Williams’ guilty plea hearing, which was in evidence at
the habeas trial, reveals that Williams entered a straight
guilty plea in exchange for a total effective sentence of
five years incarceration, execution suspended, with five
years probation.
The respondent, the Commissioner of Correction,
asked Williams if he was present when the prosecutor
related the factual basis for his charges, and he
acknowledged that he had been present. When the
respondent asked if he recalled the prosecutor indicat-
ing ‘‘a factual basis that [the petitioner] pulled out a .45
caliber gun and shot [the victim],’’ Williams responded,
‘‘no sir.’’ The respondent also asked Williams if he
recalled the court asking if the facts set forth by the
prosecutor essentially were correct, and he stated that
he could not remember. To refresh his recollection, the
respondent provided him with a copy of the transcript
of his plea canvass. After reading it, Williams acknowl-
edged that he had confirmed that the facts set forth by
the prosecutor essentially were correct, and that he had
answered yes when the court had asked him if that was
how the crime had been committed.
The petitioner also testified at his habeas trial. He
stated that he spoke with Gannon only at his court
appearances and that he would write things down so
that he could discuss them with Gannon when he went
to court. Gannon never discussed trial strategy with
him. He also stated that he did not meet with any investi-
gators from Gannon’s office and that he was unaware
whether an investigator had worked on his case. The
petitioner testified that there were many questions that
he wanted Gannon to ask of the state’s witnesses but
that Gannon did not ask them. He stated that Gannon
did, however, tell him that those witnesses would be
recalled later so that Gannon could ‘‘ask them questions
from our point of view.’’ The petitioner also stated that
he ‘‘found out that the guy . . . with the dreads . . .
had got[ten] arrested . . . that night or the next day
and they found a gun on him matching the one that
was used.’’ He testified further that he told Gannon to
‘‘call this guy, get the gun or ballistics on it or some-
thing,’’ and that Gannon told him ‘‘don’t worry.’’ As to
Williams, the petitioner testified that Gannon told him
that he would talk to Williams. The petitioner was aware
that Williams was not incarcerated, but he did not know
how Williams’ case was proceeding. The petitioner
explained that he did not talk to Williams himself
because he ‘‘didn’t want it to be said that [they]
rehearsed anything or . . . [that he] told anybody to
say anything . . . .’’ The petitioner, therefore, asked
his wife to give Gannon Williams’ telephone number.
At the time, Williams was living in New York with the
petitioner’s sister.
During cross examination, the respondent asked the
petitioner to clarify whether he had ‘‘discuss[ed] poten-
tial witnesses with Attorney Gannon.’’ The petitioner
responded: ‘‘Not before the trial. No.’’ The respondent
also asked about witness statements that the petitioner
may have seen, and the petitioner stated that he
received a copy of all witness statements at trial, as
well as all of the police reports.
After trial, the habeas court determined that Gan-
non’s investigation was factually and legally sufficient
under constitutional standards. The court also found
that the petitioner and Williams were not credible wit-
nesses, and that Williams’ testimony would not have
been helpful to the petitioner at his criminal trial. The
court concluded, therefore, that the petitioner had
failed to establish that Gannon’s assistance was ineffec-
tive, and it denied the petition. The court thereafter
granted the petition for certification to appeal. This
appeal followed. Additional facts will be set forth as
necessary.
The petitioner claims that the habeas court commit-
ted error when it concluded that he had failed to estab-
lish that his right to the effective assistance of counsel
had been violated by Gannon’s failure to present the
testimony of Williams. We are not persuaded.
We begin by setting forth the applicable standard of
review and the law governing ineffective assistance of
counsel claims. ‘‘The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators.
. . . Accordingly, [t]he habeas judge, as the trier of
facts, is the sole arbiter of the credibility of witnesses
and the weight to be given to their testimony. . . . The
application of the habeas court’s factual findings to the
pertinent legal standard, however, presents a mixed
question of law and fact, which is subject to plenary
review.’’ (Citations omitted; internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 677, 51 A.3d 948 (2012).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. Strickland v. Wash-
ington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)]. This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . It is axiomatic that the right to counsel is
the right to the effective assistance of counsel. . . . A
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. To satisfy the performance prong . . . the peti-
tioner must demonstrate that his attorney’s representa-
tion was not reasonably competent or within the range
of competence displayed by lawyers with ordinary train-
ing and skill in the criminal law. . . . To satisfy the
prejudice prong, [the petitioner] must demonstrate that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. . . . The claim will succeed
only if both prongs are satisfied. . . . Gonzalez v. Com-
missioner of Correction, 308 Conn. 463, 470, 68 A.3d
624, cert. denied sub nom. Dzurenda v. Gonzalez,
U.S. , 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013). Conse-
quently, [i]t is well settled that [a] reviewing court can
find against a petitioner on either ground, whichever
is easier. . . . Valeriano v. Bronson, 209 Conn. 75, 86,
546 A.2d 1380 (1988); see also Strickland v. Washing-
ton, supra, 697 (a court need not determine whether
counsel’s performance was deficient before examining
the prejudice suffered by the defendant). . . . Small
v. Commissioner of Correction, 286 Conn. 707, 713, 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).’’
(Emphasis omitted; internal quotation marks omitted.)
Sanchez v. Commissioner of Correction, 314 Conn. 585,
605–606, 103 A.3d 954 (2014).
The petitioner contends that Williams’ testimony
would have contradicted the testimony of the state’s
witnesses who had identified the petitioner as the
shooter. The petitioner explains: ‘‘Trial counsel was
deficient because he failed to investigate and determine
the status of Walter Williams’ case before the petition-
er’s criminal trial. If counsel had done so, he would
have discovered that Williams had resolved his case
and that he was available to testify that the petitioner
was not the shooter. The petitioner was prejudiced by
counsel’s deficient performance. There is a reasonable
probability that—but for [the failure of] the petitioner’s
[counsel] . . . to present the testimony of Walter Wil-
liams—the outcome of the criminal trial would have
been different.’’
In rejecting the petitioner’s claim regarding the failure
to call Williams as a witness, the habeas court did not
explicitly state which prong of the Strickland test the
petitioner failed to satisfy. Nevertheless, it is clear from
the court’s discussion of the evidence that the petitioner
failed to prove that the failure to present Williams preju-
diced him. The habeas court found that Williams’ credi-
bility was lacking, and it opined that the state’s cross-
examination revealed additional credibility problems
Williams would have had as a defense witness had he
been called to testify at the petitioner’s criminal trial.
Specifically, the court explained: ‘‘[Williams] entered a
‘straight’ guilty plea to crimes with a factual basis
directly implicating the petitioner as the shooter of [the
victim]. Now, a number of years later . . . [Williams]
testifies to a factual scenario completely different from
that which served as the basis for his conviction. The
court does not find that [Williams’] testimony would
have been particularly helpful to the petitioner at trial.’’
The court also noted correctly that the failure of defense
counsel to call a witness cannot constitute ineffective
assistance without, at a minimum, a showing that the
witness’ testimony would be helpful. The habeas court
concluded that the petitioner failed to make such a
showing. On the basis of the habeas court’s findings,
including its credibility determinations, we agree.
‘‘In order to prevail on a claim of ineffectiveness
of counsel, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
. . . [T]he question is whether there is a reasonable
probability that, absent the [alleged] errors, the [fact
finder] would have had a reasonable doubt respecting
guilt. . . .
‘‘In making this determination, a court hearing an
ineffectiveness claim must consider 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. . . . [T]he ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose
result is being challenged. . . . The benchmark for
judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper function-
ing of the adversarial process that the trial cannot be
relied on as having produced a just result.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, supra, 306 Conn. 688–89.
The case against the petitioner was not weak. During
his criminal trial, two witnesses testified that they saw
the petitioner shoot the victim. The victim, although
being unable to positively identify the petitioner as the
shooter, testified that the shooter was the man who was
with Williams. Had Williams been called as a witness,
he would have been confronted with his guilty plea and
the underlying facts he acknowledged as true, which
only would have served to corroborate the testimony
of these witnesses. Furthermore, we must accept the
habeas court’s conclusion that Williams’ testimony that
someone other than the petitioner was the shooter was
not credible.
Here, even if we assume, without deciding, that Gan-
non’s performance was deficient for failing to know
that Williams had resolved his case and was prepared
to testify that the petitioner did not shoot the victim,
our standard is clear: ‘‘An error by counsel, even if
professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error
had no effect on the judgment. . . . To satisfy the sec-
ond prong of Strickland . . . the petitioner must estab-
lish that, as a result of his trial counsel’s deficient
performance, there remains a probability sufficient to
undermine confidence in the verdict that resulted in
his appeal. . . . The second prong is thus satisfied if
the petitioner can demonstrate that there is a reason-
able probability that, but for that ineffectiveness, the
outcome would have been different.’’ (Citations omit-
ted; internal quotation marks omitted.) Bryant v. Com-
missioner of Correction, 290 Conn. 502, 522, 964 A.2d
1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S.
938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).
On the basis of the foregoing, we are not persuaded
that there is a reasonable probability that, had Gannon
called Williams to testify, the outcome of the petition-
er’s trial would have been different. There was consider-
able evidence against the petitioner, and Williams, only
months before, had admitted to the judge in his own
plea canvass that the petitioner was the shooter. The
habeas court also found that Williams lacked credibility.
Under the circumstances, we are confident that the
outcome of the petitioner’s criminal trial would not have
been different if Williams had been called to testify.
The habeas court, therefore, properly concluded that
the petitioner was not denied the effective assistance
of counsel at his criminal trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On October 8, 2011, pursuant to a stipulated judgment in the petitioner’s
previous habeas petition, the habeas court rendered judgment reducing the
executed portion of the petitioner’s sentence to nineteen years.
2
The petitioner’s sister and Williams have children together.
3
Williams also stated that he told the police that the petitioner was not
the shooter.