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Hazel v. Commissioner of Correction

Court of Appeals of Connecticut

February 6, 2018

MICHAEL HAZEL
v.
COMMISSIONER OF CORRECTION

          Argued December 4, 2017

          Michael W. Brown, for the appellant (petitioner).

          Melissa Patterson, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent).

          Sheldon, Bright and Beach, Js.

          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 Horace'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 victim 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 Williams 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 Statutes §§ 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), carrying 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 sentence of twenty years to serve, followed by five years of special parole.[1] Id., 216. This court affirmed the judgment 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 co defendant, 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 Williams' testimony.

         The court conducted a habeas trial on January 11, 2016, wherein the petitioner presented witnesses, including Gannon and Williams. The petitioner also testified 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 matters that were headed to trial, he would have an investigator, 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 investigation that was undertaken in the petitioner's case. When asked whether he remembered not calling any witnesses during the trial, Gannon did not recall specifically; 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 medicine inside the package, and they returned to the store. Williams stated that he and the victim, who was swinging 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]ith in five minutes or ten minutes of ...


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