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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 certification, 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 prejudiced 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 credibility 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 attorney, and Marc G. Ramia, senior assistant state’s attorney, 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 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 53a48 (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 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 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]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 criminal 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 indicating ‘‘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 acknowledged 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 investigators 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 something,’’ 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] potential 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 Gannon’s investigation was factually and legally sufficient

under constitutional standards. The court also found

that the petitioner and Williams were not credible witnesses, 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 ineffective, 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 committed error when it concluded that he had failed to establish 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 findings will not be disturbed unless they are clearly erroneous. . . . 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 critical stages of criminal proceedings. Strickland v. Washington, [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 constitution and article first, § 8, of the Connecticut constitution. . . . 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 petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range

of competence displayed by lawyers with ordinary training 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. Commissioner 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). Consequently, [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. Washington, 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 petitioner’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 Williams—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 prejudiced him. The habeas court found that Williams’ credibility was lacking, and it opined that the state’s crossexamination 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 unprofessional 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 functioning 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 Gannon’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 second prong of Strickland . . . the petitioner must establish 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 reasonable probability that, but for that ineffectiveness, the

outcome would have been different.’’ (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner 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 petitioner’s trial would have been different. There was considerable 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.