Fisher v. Commissioner of Correction
Fisher v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly dismissed his claim of
The following history of the case is necessary for a resolution of this appeal. The petitioner was convicted, after a jury trial, of murder, conspiracy to commit murder, and assault in the first degree. The petitioner received a total effective sentence of fifty years in the custody of the commissioner of correction.
On the petitioner’s direct appeal, State v. Fisher, 210 Conn. 619, 556 A.2d 596 (1989), our Supreme Court held that the trial court did not improperly admit a written statement that the petitioner had submitted to the police. The petitioner also filed a petition for a new trial on the basis of newly discovered evidence, which was denied by the trial court. This court subsequently affirmed the trial court’s denial of the petition. See Fisher v. State, 33 Conn. App. 122, 634 A.2d 1177 (1993). The petitioner filed a petition for writ of habeas corpus, asserting that he was denied effective assistance of counsel. Following an evidentiary hearing before the habeas court, the court dismissed the petition. This appeal followed.
The following facts are necessary for the disposition of this appeal. Between 8:30 and 9 p.m. on May 12, 1987, the petitioner and Michael Walker approached the backyard of 102-104 Enfield Street from the backyard of 98-100 Enfield Street in Hartford. At that time, Tom Dixon and Barrington Solomon were sitting on the first floor rear porch of a three story multi-family dwelling located at 104 Enfield Street. The petitioner ran from a tree to a fence that separated the backyards and, using some type of automatic or semiautomatic weapon, fired several shots toward the back porch of 102-104 Enfield Street where the two men were sitting. The petitioner
The petitioner asserts that the habeas court incorrectly concluded that the petitioner was not prejudiced when his trial counsel failed to call several witnesses and allegedly failed to impeach effectively the testimony of two other witnesses. The petitioner argues that the habeas court should have determined that the evidence that was not presented was sufficient to undermine confidence in the outcome of that trial. Therefore, he claims that there is reasonable probability that the outcome of the trial would have been different, the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for habeas relief where trial counsel's performance is ineffective. We are unpersuaded.
The petitioner claimed before the habeas court that he was rendered ineffective assistance of counsel due to his counsel’s failure to call Deserene Taylor, Antoinette Taylor and Dionne Smith as witnesses and to conduct an effective impeachment of Regina Tillis and Nadine Collier.
The habeas court heard testimony from both Smith and Deserene Taylor. In addition, Antoinette Taylor’s testimony from Walker’s trial was admitted into evidence. Deserene Taylor testified that she owned 98-100 Enfield Street at the time of the shooting. She also testified that at that time she did not know Smith or Landon Brown.
Donald Gates, a private investigator employed by Walker’s father, also testified at the habeas trial. Gates testified that he taped interviews of Collier and Tillis after the shooting. A transcript of those interviews was admitted into evidence at the habeas trial. During this interview, Collier told Gates that she had observed two “shadows” when she looked out her back window at the time of the shooting. The petitioner also offered the testimony of his trial counsel, William Collins, and attorney Richard Maraño concerning the performance prong of Strickland.
The habeas court evaluated the petitioner’s claim of ineffective assistance of counsel under the proper two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, supra, 466 U.S. 668. “Under Strickland, the petitioner must show that (1) defense counsel’s performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; id., 687-88; and (2) but for counsel’s substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id., 694.” Clarke v. Commissioner of Correction, 43 Conn. App. 374, 385, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 123 (1996).
The habeas court in its memorandum of decision addressed only the prejudice prong of Strickland, stating: “A habeas court need not address the question of counsel’s performance if it is easier to dispose of an
The habeas court’s determination as to whether the petitioner’s constitutional right to effective assistance of counsel has been violated is subject to plenary review by this court. See Evans v. Commissioner of Correction, 37 Conn. App. 672, 657 A.2d 1115, cert. denied, 234 Conn. 912. 660 A.2d 354 (1995). We thus examine the conclusions of the habeas court in light of the testimony and record before us.
The petitioner contends that the habeas court cited the incorrect Strickland standard regarding prejudice. The trial court twice stated in its memorandum of decision that the petitioner had the “burden of proving by a preponderance of the evidence that there exists a reasonable probability that the outcome of his criminal trial would have been different.” (Emphasis added.)
While the trial court did incorrectly state that the petitioner had to prove prejudice by a preponderance of the evidence, it also applied the correct standard in its memorandum of decision. In Strickland, the United States Supreme Court held that “actual ineffectiveness
We agree with the habeas court that it may be likely that the evidence that was not presented would have raised some doubts regarding where Brown was positioned at the time of the shooting. Nevertheless, Brown was still able to relate facts about the shooting that were corroborated by other witnesses and that only an eyewitness could have known. These facts include the precise location from which the two bursts of gunfire came,
Thus, on the basis of our review of the habeas transcript and the entire record, we conclude that the habeas court correctly determined that the petitioner failed to sustain his burden of proving that there is a probability of a different outcome sufficient to undermine confidence in the verdict, and that the habeas court properly found that the petitioner was not deprived of his constitutionally mandated right to effective assistance of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
Brown had testified at the petitioner's trial that he had witnessed the shootings while he was visiting Smith at 98-100 Enfield Street.
The performance prong oí Strickland is not currently before this court.
This location was established by the discovery of empty shells.
Reference
- Full Case Name
- TRACY FISHER v. COMMISSIONER OF CORRECTION
- Cited By
- 9 cases
- Status
- Published