Harris v. Commissioner of Correction ( 2019 )

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TROY HARRIS v. COMMISSIONER OF
CORRECTION
(AC 41036)
Lavine, Elgo and Bishop, Js.
Syllabus
The petitioner, who had been convicted of the crimes of attempt to commit
murder and assault in the first degree in connection with a shooting
incident, filed a third petition for a writ of habeas corpus, claiming that
he had received ineffective assistance of counsel from V, who had
represented him with respect to his second petition for a writ of habeas
corpus. Specifically, the petitioner alleged that V was ineffective for
failing to show that his first habeas counsel was ineffective for failing
to show that his trial attorney rendered ineffective assistance of counsel
for failing to obtain psychiatric records of one of the state’s witnesses,
J. The habeas court rendered judgment denying the habeas petition
and, thereafter, denied the petition for certification to appeal, and the
petitioner appealed to this court. Held that the habeas court did not
abuse its discretion in denying the petition for certification to appeal,
the petitioner having failed to demonstrate that his prior habeas and
trial counsel were ineffective; the petitioner produced no evidence that
J would have, at the time of trial, consented to a review of her records,
especially given that J testified at the habeas trial that she would not
sign a release for her records because she was afraid that evidence of
her mental health would be used against her in custody disputes, and,
therefore, the petitioner had failed to demonstrate that his claim of
ineffective assistance of habeas and trial counsel was adequate to
deserve encouragement to proceed further.
Argued April 17—officially released July 16, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court; subsequently, the court, Sfer-
razza, J., denied the petitioner’s motion for articulation;
thereafter, this court granted the petitioner’s motion
for review but denied the relief requested therein.
Appeal dismissed.
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Laurie N. Feldman, special deputy 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
LAVINE, J. The petitioner, Troy Harris, appeals from
the habeas court’s denial of his petition for certification
to appeal from its judgment denying his third petition
for a writ of habeas corpus. On appeal, the petitioner
claims that the habeas court abused its discretion in
denying his petition for certification to appeal and
improperly concluded that the petitioner’s prior habeas
and trial counsel were not ineffective for failing to
obtain the psychiatric records of one of the state’s wit-
nesses, Tammy Jamison. We conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal and, accordingly, dismiss the
petitioner’s appeal.
This is the fourth time that the petitioner has been
before this court. The following facts, as this court
summarized on direct appeal, and procedural history,
as articulated by this court on the petitioner’s second
habeas appeal, are relevant to our resolution of the
issues in the present appeal. ‘‘On May 16, 2000, John
Simpson drove Howard Dozier and Hector Quinones
to Washington Street in Waterbury to pick up Ray
Ramos. At that time, the [petitioner] was residing at 39
Washington Street with . . . Jamison, the mother of
his child. Simpson stopped the vehicle he was driving
on Washington Street in a driveway between the [peti-
tioner’s] house and the house where they were picking
up Ramos, and all three men exited the car. Dozier
walked up the street and encountered the [petitioner]
standing on his porch . . . . Dozier and the [petitioner]
had a brief conversation. As Dozier turned his back to
the [petitioner] in an attempt to return to the vehicle
in which he had arrived, the [petitioner] began firing
an Uzi machine gun at Dozier. Dozier ran back to the
vehicle and he and Simpson drove off. The [petitioner]
continued to fire at the vehicle, and Simpson, who was
driving, was shot in his neck.
‘‘The [petitioner] was tried to a jury, which found
him guilty of attempting to murder Simpson and Dozier,
as well as the first degree assault on Simpson. The
[petitioner] received a total effective sentence of forty
years imprisonment.’’ (Footnotes omitted.) State v.
Harris, 85 Conn. App. 637, 639–40, 858 A.2d 284, cert.
denied, 272 Conn. 901, 863 A.2d 695 (2004).
Jamison, Simpson, and Dozier testified at the petition-
er’s underlying criminal trial. ‘‘Jamison testified that
she and the [petitioner] lived together at the address
where the shooting took place, and that, on the night
of the shooting, she saw the [petitioner] leave their
apartment with a machine gun that she had seen in his
possession approximately one month earlier. . . .
[S]he looked down from the second floor window and
saw the tip of the gun, a person across the street and
shots fire out of the gun. . . . [A]fter the shooting, the
[petitioner] came back upstairs carrying the gun and
. . . [Jamison] and the [petitioner] wrapped it in a shirt
and placed it inside a book bag. . . . [S]he then left
the apartment with the gun and went to her aunt’s
house, where she hid the gun inside a grill. . . . [A]t
the [petitioner’s] request, she gave the gun to Dontae
Stallings, a friend of the [petitioner] who lived in their
building. Jamison also revealed that she was incarcer-
ated after pleading guilty to charges of hindering prose-
cution for hiding the [gun]. [Moreover], Jamison
testified that the [petitioner] told her that he fired the
gun from the porch and that there was no question in
her mind that . . . [he] fired the gun from her porch.’’
(Footnotes omitted.) Id., 653–54.
‘‘Dozier testified that he knew the [petitioner] from
previous encounters . . . . [H]e and the [petitioner]
previously had engaged in face-to-face disagreements.
. . . [O]n the night of the shooting, he was having a
conversation with the [petitioner] when the [petitioner]
pulled out a gun from behind his leg. . . . [W]hen he
saw the [petitioner] raise the gun, he turned and ran
toward the vehicle Simpson was driving, and then shots
were fired. . . . [H]e did not see anyone else with a
gun besides the [petitioner]. . . .
‘‘Simpson testified that he had a conversation with
the [petitioner] immediately before the shots were fired.
. . . [H]e saw the [petitioner] on his porch, holding a
gun, and was assured by the [petitioner] that he was
‘straight’ when he asked the [petitioner] if he was going
to shoot him. Simpson further testified that he saw the
[petitioner] fire the gun at Dozier as he ran down the
street.’’ Id., 652–53.
On direct appeal, this court determined that ‘‘the
state’s case was overwhelmingly strong. This was not
merely a credibility contest between one defendant and
one victim—this was a credibility contest, supported
by physical evidence, among the [petitioner] and Simp-
son, his assault victim and attempted murder victim;
Dozier, an eyewitness to the assault and an attempted
murder victim; and Jamison, the mother of his child,
with whom he was residing at the time of the shooting.
The evidence showed no connection between Jamison
and the victims, and therefore no reason to suspect that
she offered false testimony to corroborate the stories
of Simpson and Dozier. The evidence also showed that
Simpson and Dozier had no personal animus toward the
[petitioner], and therefore no motivation to fabricate a
story. The physical evidence showed conclusively that
the gun from which the bullets were fired was the same
gun that was recovered after Jamison told the police
where she disposed of it after it was fired by the [peti-
tioner]. The testimony of the witnesses in this case,
who had very different connections and relationships
with the [petitioner], and which was supported by the
physical evidence, strongly supported the [petitioner’s]
conviction.’’ Id., 647.
After the petitioner’s conviction was affirmed on
direct appeal, he filed his first petition for a writ of
habeas corpus. ‘‘In that petition, the petitioner chal-
lenged his underlying conviction on the ground of inef-
fective assistance of counsel . . . [and alleged] that his
trial counsel, [Robert] Berke, had been ineffective in
failing properly to investigate all possible exculpatory
and/or alibi witnesses who might have supported his
defense at trial. . . . The habeas court [Schuman, J.]
rejected that claim . . . conclud[ing] that Berke did
not render ineffective assistance of counsel and that
his failure to call several individuals as alibi witnesses
at the criminal trial was a valid strategic decision. The
[habeas] court credited Berke’s testimony that he tried
to discourage the petitioner from testifying at the crimi-
nal trial but that the petitioner wanted to testify regard-
less of whether the alibi witnesses did so. The
petitioner’s testimony differed from that which would
have been offered by the putative alibi witnesses. The
[habeas] court noted that as conflicting as the petition-
er’s own versions of his alibi were, the addition of alibi
witnesses would likely have made matters worse for
the petitioner. The [habeas] court thereafter denied his
petition for certification.’’ (Citation omitted; internal
quotation marks omitted.) Harris v. Commissioner of
Correction, 146 Conn. App. 877, 880–81, 81 A.3d 259
(2013), cert. denied, 322 Conn. 905, 139 A.3d 708 (2016).
The petitioner appealed from the denial of his petition
for certification and made three arguments to this court.
‘‘First, he claimed that, when deciding his claim of
ineffective assistance of counsel, the habeas court
improperly had applied the presumption of attorney
competence set forth in Strickland v. Washington, [466
U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d (1984)].
Second, he claimed that the habeas court improperly
had defined the concept of exculpatory evidence,
thereby, assertedly, making it futile for him to present
evidence regarding the psychiatric history of Jamison,
which Berke had failed to elicit during trial. Third, he
claimed that the [habeas] court improperly avoided cer-
tain ethical issues when determining that Berke’s deci-
sion not to present alibi witnesses at the trial had been
a strategic decision. . . . This court was not persuaded
by the petitioner’s arguments, and thus ordered that
his appeal from the denial of his first habeas petition
be dismissed.’’ (Citation omitted.) Harris v. Commis-
sioner of Correction, supra, 146 Conn. App. 881.
The petitioner filed a second petition for a writ of
habeas corpus, and claimed that his first habeas coun-
sel, Justine Miller, had been ineffective because: ‘‘(1)
[she] failed to call . . . Jamison who would recant her
trial testimony and say that [the petitioner] did not
shoot the victims; (2) [she] did not subpoena Jamison’s
medical records which document[ed] her mental disor-
der; and (3) [she] did not subpoena alibi witnesses to
testify at the habeas trial. . . . [T]he court, T. Santos,
J. . . . dismissed the petition upon finding that the
petitioner had failed to meet his burden of proving,
under the first prong of Strickland, that Miller’s perfor-
mance was ineffective. . . . [T]he petitioner filed a
petition for certification to appeal from the dismissal
of his amended second petition for a writ of habeas
corpus, which [the second habeas court] . . . granted
. . . .’’ (Internal quotation marks omitted.) Id., 882. This
court affirmed the judgment of the second habeas court,
agreeing that the petitioner had failed to demonstrate
that Miller’s performance was deficient. Id., 889.
In his third habeas petition, the petitioner alleged, in
relevant part, that his second habeas counsel, Joseph
Visone, ‘‘was ineffective for failing to show that [Miller]
was ineffective for failing to show that [Berke] rendered
ineffective assistance of counsel . . . for failing to sub-
poena [Jamison’s psychiatric] records . . . .’’ The
habeas court, Sferrazza, J., denied the petition, con-
cluding that the petitioner failed to establish that Visone
was ineffective or that the petitioner was prejudiced.
The petitioner filed a petition for certification to
appeal from the denial of his amended third petition
for a writ of habeas corpus on October 19, 2017. The
habeas court denied the petition for certification to
appeal on October 20, 2017, and the petitioner appealed
to this court.
The petitioner claims on appeal that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal from the denial of his third petition for
a writ of habeas corpus that alleges ineffective assis-
tance of habeas and trial counsel for failing to obtain
Jamison’s psychiatric records. Because the petitioner
failed to establish that Jamison would have consented
to a review of her records, we conclude that the habeas
court did not abuse its discretion when it denied the
petition for certification to appeal and agree with the
habeas court that the petitioner failed to demonstrate
that his prior habeas and trial counsel were ineffective.
A petitioner can only obtain appellate review of the
denial of his petition for certification to appeal by satis-
fying the two-pronged test enunciated by our Supreme
Court in Simms v. Warden, 229 Conn. 178, 640 A.2d
601 (1994), and adopted in Simms v. Warden, 230 Conn.
608, 612, 646 A.2d 126 (1994). ‘‘First, he must demon-
strate that the denial of his petition for certification
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he must
prove that the decision of the habeas court should be
reversed on the merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Internal
quotation marks omitted.) Mejia v. Commissioner of
Correction, 112 Conn. App. 137, 144, 962 A.2d 148, cert.
denied, 291 Conn. 910, 969 A.2d 171 (2009).
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Internal quotation
marks omitted.) Mercado v. Commissioner of Correc-
tion, 183 Conn. App. 556, 561, 193 A.3d 671, cert. denied,
330 Conn. 918, 193 A.3d 1211 (2018). We, therefore,
address the petitioner’s claim that the habeas court
improperly concluded that the petitioner’s prior habeas
and trial counsel were not ineffective by failing to obtain
Jamison’s psychiatric records.
We begin by noting our well settled standard of
review in a habeas corpus proceeding contesting the
effective assistance of habeas counsel. ‘‘Although a
habeas court’s findings of fact are reviewed under the
clearly erroneous standard of review . . . [w]hether
the representation a defendant received at trial was
constitutionally inadequate is a mixed question of law
and fact. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard.’’ (Internal quotation marks omitted.) Tocca-
line v. Commissioner of Correction, 80 Conn. App. 792,
797, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d
413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S.
854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51-296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition. . . . In Lozada, the court explained
that [t]o succeed in his bid for a writ of habeas corpus,
the petitioner must prove both (1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective.’’ (Citation omitted; internal
quotation marks omitted.) Gerald W. v. Commissioner
of Correction, 169 Conn. App. 456, 463–64, 150 A.3d 729
(2016), cert. denied, 324 Conn. 908, 152 A.3d 1246
(2017).
As to each claim of ineffectiveness, the petitioner
must satisfy the familiar two-pronged test set forth in
Strickland v. Washington, supra, 466 U.S. 687. ‘‘First,
the [petitioner] must show that counsel’s performance
was deficient. . . . Second, the [petitioner] must show
that the deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it can-
not be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable. . . . In other words, a petitioner
claiming ineffective assistance of habeas counsel on
the basis of ineffective assistance of trial counsel must
essentially satisfy Strickland twice . . . .’’ (Citation
omitted; internal quotation marks omitted.) Gerald W.
v. Commissioner of Correction, supra, 169 Conn.
App. 464.
The performance inquiry centers on ‘‘whether coun-
sel’s assistance was reasonable considering all the cir-
cumstances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he was
entitled to reversal of the conviction and a new trial
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 464–65. ‘‘Simply put, a petitioner cannot
succeed as a matter of law . . . on a claim that his
habeas counsel was ineffective by failing to raise a claim
against trial counsel or prior habeas counsel in a prior
habeas action unless the petitioner ultimately will be
able to demonstrate that the claim against trial or prior
habeas counsel would have had a reasonable probabil-
ity of success if raised.’’ Lebron v. Commissioner of
Correction, 178 Conn. App. 299, 320, 175 A.3d 46 (2017),
cert. denied, 328 Conn. 913, 179 A.3d 779 (2018).
The petitioner alleges that Berke was ineffective
because he ‘‘failed to pursue Jamison’s psychiatric his-
tory or subpoena [Department of Correction] records
for use as impeachment,’’ and that he ‘‘could have satis-
fied the preliminary showing required by State v. Espos-
ito, 192 Conn. 166, [471 A.2d 949] (1984), such that
Jamison’s testimony would have been stricken had she
not consented to an in camera inspection of the psychi-
atric records . . . that an in camera inspection of the
records would have revealed information relevant to
Jamison’s testimonial capacity such that her testimony
would have been stricken had she not consented to
disclosure of the records . . . for use as impeachment
[and] that Jamison’s testimony would have been
severely undercut by the information contained in [her
psychiatric] records.’’1 Because the petitioner failed to
produce evidence that Jamison would have consented
to a review of her records at the time of trial, we
disagree.2
‘‘The psychiatrist-patient privilege, which is codified
at [General Statutes] § 52-146e (a), prohibits the disclo-
sure of any communications and records that identify
a person who has communicated with a psychiatrist
for the purpose of diagnosis or treatment without the
express prior consent of the patient or his authorized
representative. The privilege applies to all oral and writ-
ten communications and records thereof relating to
diagnosis or treatment of a patient’s mental condition
between the patient and a psychiatrist . . . . In gen-
eral, [our Supreme Court has] interpreted the privilege
broadly and its exceptions narrowly . . . [and has]
sometimes used language suggesting that, when no stat-
utory exception applies, the privilege is absolute. . . .
The broad sweep of the statute covers not only disclo-
sure to a defendant or his counsel, but also disclosure
to a court even for the limited purpose of an in camera
examination.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Fay, 326
Conn. 742, 751–52, 167 A.3d 897 (2017).
The petitioner has produced no evidence that Jami-
son would have, at the time of trial, consented to a
review of her records, especially given that Jamison
testified to the habeas court that she would not sign a
release for her records because she was afraid that
evidence of her mental health would be used against her
in custody disputes.3 As the petitioner has not provided
evidence that Jamison, during the trial, would have
consented to a review of her psychiatric records, the
petitioner’s claim fails.
We, therefore, conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal because the petitioner has failed to
demonstrate that his claim of ineffective assistance of
habeas and trial counsel was adequate to deserve
encouragement to proceed further. We, accordingly,
dismiss the petitioner’s appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner further argues that Miller was ineffective for failing to
subpoena the records, to examine Jamison, and to elicit testimony from
Berke to support this claim of ineffectiveness against Berke, and that Visone
was ineffective for failing to subpoena the records and to elicit testimony
to support a claim of ineffectiveness against Miller. Because we conclude
that Berke was not ineffective, we need not address these arguments.
Even if we were to reach the petitioner’s arguments regarding the perfor-
mance of his prior habeas counsel, this court already has rejected the
petitioner’s claim that Miller was ineffective for failing to subpoena Jamison’s
records and concluded that Miller made a reasonable strategic decision.
Harris v. Commissioner of Correction, supra, 146 Conn. App. 889. Miller
indicated that psychiatric records, if disclosed, might undermine the reliabil-
ity of the retraction she believed Jamison might make of her trial testimony.
Id., 885. Miller also stated that she did not believe the psychiatric records
were pertinent to Jamison’s mental state as of the time of the crime and
the petitioner’s criminal trial. Id., 885–86.
2
The petitioner additionally argues that Berke could have satisfied the
preliminary showing required by State v. Esposito, supra, 192 Conn. 166, such
that Jamison’s testimony would have been stricken had she not consented
to an in camera inspection of the psychiatric records. The substance of
the petitioner’s argument, however, fails to meet the standard set forth
in Esposito.
As our Supreme Court observed in Esposito, the mere existence of a
psychiatric disorder does not automatically impugn a witness’ ability to
testify truthfully or to relay events accurately, nor does it automatically
subject that witness’ psychiatric records to disclosure. See State v. Blake,
106 Conn. App. 345, 352, 942 A.2d 496 (‘‘[t]he linchpin of the determination
of the defendant’s access to the records is whether they sufficiently disclose
material especially probative of the [witness’] ability to comprehend, know
and correctly relate the truth . . . so as to justify breach of their confidenti-
ality and disclosing them to the defendant in order to protect his right of
confrontation’’ [internal quotation marks omitted]), cert. denied, 287 Conn.
922, 951 A.2d 573 (2008). To make a threshold showing that an in camera
review is appropriate, the petitioner must show that the witness had a
‘‘substantially diminished’’ capacity to ‘‘observe, recollect and narrate’’ the
event. State v. Esposito, supra, 192 Conn. 176. The petitioner has produced
no evidence that Berke could have made a showing that Jamison may have
been experiencing manifestations of a schizophrenic episode or other mental
health event that would have substantially diminished her testimonial capac-
ity at any time relevant to her account of the incident or when she was
testifying at the criminal trial.
The petitioner, therefore, fails to establish that Berke could have made
a threshold showing that at any pertinent time Jamison had a mental health
illness that affected her testimonial capacity in any respect, let alone to a
sufficient degree to warrant further inquiry. See id., 180.
3
Jamison gave the following testimony at the petitioner’s third habeas
trial when she was questioned by the petitioner’s counsel:
‘‘Q. Do you recall not actually signing [a] release . . . for your . . . men-
tal health records for our investigator?
‘‘A. No. Because I don’t trust [my daughter’s] father.
‘‘Q. Okay.
‘‘A. I think in the future he would try to hold my mental [records] against me
when it comes to my daughter and my granddaughter, so I won’t sign them.
‘‘Q. Okay. Would you be willing to now?
‘‘A. No.’’