Fisher v. Commissioner of Correction, AC

• Decision Date: 14 July 1997
• Docket Number: No. AC,AC
• Citation: 45 Conn.App. 362,696 A.2d 371
• Court: Connecticut Court of Appeals
• Parties: Tracy FISHER v. COMMISSIONER OF CORRECTION. 14295.

Page 371

696 A.2d 371

45 Conn.App. 362

Tracy FISHER v. COMMISSIONER OF CORRECTION.

No. AC 14295.

Appellate Court of Connecticut.

Argued Feb. 20, 1997.

Decided June 3, 1997.

Certification Denied July 14, 1997.

Kent Drager, Senior Assistant Public Defender, for appellant (petitioner).

Leon F. Dalbec, Jr., Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and John J. Dropick, Senior Assistant State's Attorney, for appellee (respondent).

Before FOTI, LAVERY and LANDAU, JJ.

LAVERY, Judge.

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 ineffective assistance of counsel by incorrectly finding that the petitioner was not prejudiced by his trial counsel's performance. We affirm the judgment of the habeas court.

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 then returned to the tree and gave the weapon to Michael Walker. Walker fired several more shots at the back porch of 102-104 Enfield Street with the weapon. As a result of the gunfire, Dixon suffered fatal injuries and Solomon suffered serious physical injuries. The shooting was apparently in retaliation for a previous shooting in which Solomon had allegedly severely wounded Walker's brother.

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. ¹ Antoinette Taylor's testimony revealed that at the time of the shooting she lived with her family on the second floor of 98-100 Enfield Street and did not know either Brown or Smith. Smith testified that at the time of the shooting she lived at 829 Albany Avenue in Hartford, and that she had been to 98-100 Enfield Street only after the shooting.

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 Marano concerning the performance prong of Strickland. ²

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, 104 S.Ct. 2052, 80 L.Ed.2d 674. "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., at 687-88, 104 S.Ct. at 2064-65; and (2) but for counsel's substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id., at 694, 104 S.Ct. at 2068." 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 120 (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 ineffective assistance claim on the grounds of insufficient prejudice. Pelletier v. Warden, 32 Conn.App. 38, 46, [627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694] (1993)." After considering the testimony that was not presented, and reviewing the transcript of the petitioner's trial, the habeas court concluded: "It is axiomatic that the trier of fact may accept some of a witness' testimony even though it rejects other portions of that testimony as false.... [T]he court finds that the jury at that trial...