Hazel v. Warden

• Decision Date: 04 May 2016
• Docket Number: CV134005155S
• Court: Connecticut Superior Court
• Parties: Michael Hazel (#312521) v. Warden

Michael Hazel (#312521) v. Warden

No. CV134005155S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

May 4, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon Vernon D. Oliver, J.

The petitioner, Michael Hazel, initiated this petition for a writ of habeas corpus, claiming that his underlying counsel provided him ineffective legal representation related to his criminal matter and direct appeal. He further claims due process violations. He seeks an order of this court vacating his convictions and returning his matters to the criminal court for further proceedings. The court finds the issues for the RESPONDENT and DENIES the petition.

I Procedural History

On July 14, 2005, in the Waterbury Judicial District, the petitioner after jury trial in the matter of State v. Michael Hazel, docket number CR03-0322522, was found guilty of attempt to commit murder in violation of Connecticut General Statutes § 53a-49(a)(2) and 53a-54a; 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 § 53a-217(a)(1); and carrying a pistol without a permit in violation of General Statutes § 29-35(a). On October 21, 2005, the trial court (Cremins, J.) sentenced the petitioner to a total effective sentence of twenty years to serve, followed by five years special parole. Attorney Michael Gannon represented the petitioner.

The petitioner appealed the conviction and the appellate court affirmed the judgment of the trial court. In so doing, that court reached the following relevant conclusions.

The jury reasonably could have found the following facts. 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 defendant, conversing. The victim explained that he had not threatened Williams with the stick. The victim and his brother shook hands with the defendant, while Williams remained unreceptive to the conciliatory efforts. The defendant 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 defendant exit from the vehicle. The victim warned his brother that " they might have guns" as Williams walked toward him. The defendant 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 defendant also to shoot Delton Rogers, but the defendant focused his attack solely on the victim. The defendant and Williams then drove off. Delton Rogers transported the victim to a hospital.

The defendant subsequently was arrested, tried and convicted, the court sentenced him to a total effective term of twenty years incarceration and five years special parole.

The defendant first claims that he was denied his constitutional right to be present at a critical stage of his prosecution. Specifically, he argues that it was structural error for the court to conduct a hearing in chambers regarding a possible conflict of interest involving defense counsel without his presence. The state counters that the record is inadequate to review this claim. We agree with the state.

The following additional facts are necessary for our discussion. Prior to the empanelment of the jury and the evidentiary phase of the trial, the court, referring to a discussion that had taken place earlier in chambers, stated: " Okay. Counsel, just the matter that we spoke about earlier [t]here is one other matter on the record related to one of the witnesses that you need to comment on; is that correct?"

Counsel for the defendant, attorney Michael P. Gannon, then stated " Yes, Your Honor. For record, the victim in this case . . . I don't know the exact date, but it was a while ago, came into my law office and asked to receive a power of attorney. He asked for the form that we have [for a] power of attorney. I gave him or my office gave him--it might have been me--gave him a form of power of attorney. We do not represent him, we just gave him a power of attorney form to fill out on his own. I told that to my client, and my client has no problem with me representing him. I don't think there is a conflict of interest in this case. Okay, Mr. Hazel, sir, do you understand the question here?" The defendant responded in the affirmative. The court then inquired if the defendant had " any problem with attorney Gannon continuing his representation?" The defendant answered in the negative. The court asked if the defendant believed that there was any type of conflict, and the defendant stated, " [n]o sir."

The court inquired if the prosecutor had any comment regarding this matter. The prosecutor responded: " No, Your Honor. When I found this out from the victim, I brought it to the attention of Mr. Gannon; that's when I brought it to the attention of Your Honor. [But in] the interest of caution, [the victim] did not say he actually obtained or hired Mr. Gannon, and it was the same situation. He went there for a power of attorney. The conversation, I believe afterward, when he picked up the form, was, is, you are representing the defendant in this case, the person who shot me; that was the end of the conversation. But in the interest of caution, we brought it before Your Honor." The court then asked if there was anything else that needed to be placed on the record, and defense counsel responded in the negative.

We now set forth the legal principles germane to the defendant's claim. " The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution both guarantee a defendant the right to effective assistance of counsel in a criminal proceeding . . . Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest . . . This right applies not only to the trial itself, but to any critical stage of a criminal proceeding." (Citations omitted; internal quotation marks omitted.) State v. Cruz, 41 Conn.App. 809, 811, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996); see also State v. Rodriguez, 93 Conn.App. 739, 745, 890 A.2d 591, appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007). Simply put, " [a] defendant's right to be present . . . is scarcely less important to the accused than the right of trial itself." (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 636, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S.Ct. 164, 169 L.Ed.2d 112 (2007).

The defendant argues that the conversation that occurred in chambers constituted a critical stage of the proceedings. In State v. Sam, 98 Conn.App. 13, 23, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006), we noted that " an in camera inquiry regarding a potential conflict of interest may constitute a critical stage of a prosecution at which time a defendant has a constitutional right to be present." (Emphasis added.) Nevertheless, it does not follow that all in chambers discussions constitute a critical stage of the prosecution. In State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004), our Supreme Court stated that " [i]n judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." (Internal quotation marks omitted.) Id., at 732, 859 A.2d 898; see also State v. Holbrook, 97 Conn.App. 490, 494-95, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006); State v. McNellis, 15 Conn.App. 416, 431-32, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). It further noted that a defendant may be afforded the right either to object or to waive an objection to his absence from a conference held in chambers if the existence of such a conference subsequently is placed on the record. State v. Lopez, supra, at 737 n.13, 859 A.2d 898. In other words, in order to determine whether the in chambers discussion constituted a critical stage of the proceedings, it is imperative that the record reveal the scope of discussion that transpired.

In the present case, the record is unclear as to the extent of the discussions that occurred in chambers, outside of the presence of the defendant. Neither the parties nor the court described or recounted on the record, with any detail, what had occurred in chambers. We therefore cannot determine the scope of this discussion. Instead, we are left to speculate as to whether the conversation consisted of the court and counsel conducting an extensive discussion as to Gannon's potential conflict of interest at one end of the spectrum or at the opposite end, a brief comment to the court that there was a matter that needed to be placed on the record, or a dialogue that fell somewhere in-between. As a result, we cannot...