Tatum v. Commissioner of Correction

783 A.2d 1151, 66 Conn. App. 61, 2001 Conn. App. LEXIS 482
CourtConnecticut Appellate Court
DecidedOctober 2, 2001
DocketAC 20432
StatusPublished
Cited by9 cases

This text of 783 A.2d 1151 (Tatum v. Commissioner of Correction) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tatum v. Commissioner of Correction, 783 A.2d 1151, 66 Conn. App. 61, 2001 Conn. App. LEXIS 482 (Colo. Ct. App. 2001).

Opinion

Opinion

SPEAR, J.

Pursuant to this court’s granting of certification, the petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that, contrary to the court’s decision, his trial counsel was ineffective because, at the petitioner’s criminal trial, counsel failed (1) to call three witnesses whose testimony would have been helpful to the defense, and (2) to investigate and present an alibi defense. We affirm the judgment of the habeas court.

In State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991), our Supreme Court on direct appeal affirmed the petitioner’s underlying murder conviction and recited the following facts that the jury reasonably could have found in the criminal trial. The defendant in February, 1988, shot and killed Larry Parrett in Parrett’s home in Waterbury and wounded Anthony Lombardo, who had approached the defendant while he was knocking on Parrett’s door. When Parrett’s girlfriend, Tracy LeVas[63]*63seur, opened the door, the defendant forced himself and Lombardo into the living room where Parrett and LeVasseur were smoking cocaine. LeVasseur and Lombardo left the room when the defendant and Parrett began to argue. A few moments later, Lombardo returned to find the defendant pointing a gun at Parrett. Lombardo stepped between the two men, but the defendant nevertheless fired four shots, which wounded Lombardo in the shoulder and killed Parrett.

That night, Lombardo picked out of a photographic array a photograph of a black man named Jay Frazer as the man who had shot him and Parrett. That same night, LeVasseur also selected Frazer’s photograph from an array that the police showed to her. The defendant’s photograph was not in either array. Approximately one week later, LeVasseur went to the Waterbury police and advised them that she had identified the wrong man. After a lineup in which Frazer participated, Le Vasseur told the police that he definitely was not the assailant. Thereafter, LeVasseur chose the defendant’s photograph from a photographic array as the person who had shot Parrett and Lombardo. Lombardo made no photographic identification, explaining that he preferred to see the parties in person. Lombardo and LeVasseur identified the defendant at the probable cause hearing and at trial as the man who had shot Lombardo and Parrett.

The habeas court found the following additional facts. The petitioner’s trial counsel, Thomas K. McDonough, was appointed as a special public defender to represent the petitioner. At the time of his appointment, McDonough had been a member of the Connecticut bar for approximately ten years and had handled a number of court trials as well as a number of civil appeals. Prior to representing the petitioner, McDonough’s criminal trial experience was limited to two jury trials in felony cases. McDonough’s recollection was understandably [64]*64less than complete at the habeas hearing, as more than ten years had elapsed by that time.

McDonough had met with the petitioner on “numerous occasions.” McDonough also hired an investigator, and both of them met with the petitioner on at least one occasion prior to trial. Although the principal identification witnesses, LeVasseur and Lombardo, both knew the petitioner and Frazer, the petitioner initially was reluctant to discuss with McDonough his involvement with the witnesses or the victims. The petitioner became more forthcoming as time passed. Some of the information provided by the petitioner was inaccurate, and some could not be verified. That particularly was so with regard to the various alibi defenses that the petitioner discussed with McDonough. Further facts will be set forth as necessary.

We first note our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000).

For the petitioner to prevail, he must prove both that trial counsel’s representation fell below an objective standard of reasonableness, making the performance deficient; Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989); and that the deficient performance actually prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The performance yardstick is whether counsel’s performance was “reasonably competent or within the range of competence displayed by lawyers [65]*65with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 703, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).

In Strickland, the United States Supreme Court stated that “[¡Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689.

As to the prejudice component of the Strickland test, a successful petitioner must demonstrate that there is a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different. Copas v. Commissioner of Correction, 234 Conn. 139, 147, 662 A.2d 718 (1995). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 694. With that standard of review in mind, we now turn to the specific claims of the petitioner.

[66]*66I

THE FAILURE TO CALL CERTAIN WITNESSES

The petitioner claims that his trial counsel was ineffective in not calling three witnesses to testify at the criminal trial.

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Cite This Page — Counsel Stack

Bluebook (online)
783 A.2d 1151, 66 Conn. App. 61, 2001 Conn. App. LEXIS 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatum-v-commissioner-of-correction-connappct-2001.