Sanchez v. Comm'r of Corr.

Decision Date02 December 2014
Docket NumberNo. 19080.,19080.
Citation103 A.3d 954,314 Conn. 585
CourtConnecticut Supreme Court
PartiesJorge SANCHEZ v. COMMISSIONER OF CORRECTION.

Michael J. Culkin, assigned counsel, for the appellant (petitioner).

Linda Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Gerard Eisenman, former senior assistant state's attorney, for the appellee (respondent).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

PALMER, J.

The dispositive issue raised by this appeal is whether the habeas petitioner, Jorge Sanchez, has demonstrated that he received ineffective assistance of counsel at his criminal trial for murder and other offenses because his counsel failed to call two witnesses whose testimony would have contradicted that of an important state's witness regarding the petitioner's motive to commit those offenses. The petitioner appeals from the judgment of the Appellate Court dismissing his appeal from the habeas court's judgment denying his amended petition for a writ of habeas corpus. The Appellate Court dismissed the appeal after concluding that the habeas court did not abuse its discretion in denying the petitioner's request for certification to appeal in accordance with General Statutes § 52–470(g).1

Sanchez v. Commissioner of Correction, 138 Conn.App. 594, 601, 53 A.3d 1031 (2012). The petitioner claims that the Appellate Court improperly concluded that the habeas court acted within its discretion in denying certification to appeal because he established that his counsel had performed deficiently in failing to call the two witnesses, and further, that had those witnesses testified, there is a reasonable probability that the outcome of his criminal trial would have been different. We need not determine whether the habeas court abused its discretion in denying the petitioner certification to appeal because even if we assume, without deciding, that the habeas court's denial of certification was an abuse of discretion, we conclude that the petitioner has not demonstrated that he is entitled to a new trial. We therefore affirm the Appellate Court's judgment.

The following factual and procedural history is necessary to our resolution of the petitioner's appeal. In 1996, following a jury trial, the petitioner was convicted of murder, conspiracy to commit murder and larceny in the first degree in connection with the killing of the victim, Angel Soto.2 Because the evidence underlying that conviction is highly relevant to the petitioner's claim that his trial counsel's performance was constitutionally defective, we set forth the facts that the jury reasonably could have found, as recited in the opinion of the Appellate Court in his direct appeal; see State v. Sanchez, 50 Conn.App. 145, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998) ; followed by a discussion of the pertinent testimony at the petitioner's criminal trial.

“The [petitioner] had been a member of the Latin Kings gang [in Bridgeport] from approximately 1989 until 1993 when he was expelled for breaking gang rules. He sought help from his cousin, Antonio Rigual, in getting back in the gang. Rigual asked his roommate, Edwardo Ortiz, what the [petitioner] could do to regain his membership in the gang. Ortiz asked Emanuel Roman and Richard Morales, the local gang leaders, for their advice. Roman and Morales informed Ortiz that the only way the [petitioner] could regain his membership was to kill either Louis Rodriguez, who had had an affair with Roman's wife, or the victim ... who knew of the affair but [had] failed to report it. Ortiz ... relay[ed] this information to the [petitioner when] the [petitioner] asked Ortiz how he could regain his membership. Because the [petitioner] did not know the victim, Ortiz pointed him out.

“With the help of others, the [petitioner] stole a red van from Devoe Paints and painted it with brown primer. On the evening of April 8, 1994, the [petitioner], Jesus Valentin and an individual known as ‘Black’ drove through Bridgeport in the van looking for the victim. They saw the victim leave the Savoy Club and followed his vehicle until it stopped outside a restaurant [named La Familia]. When the van stopped next to the victim's vehicle [at approximately 10:30 p.m.], the [petitioner] and Black shot him repeatedly and fatally.” Id., at 146–47, 718 A.2d 52.

“After the shooting, the [petitioner], Valentin and Black attended Rigual's birthday party, which was [hosted] by Ortiz. The [petitioner] told Ortiz and Rigual that he had just killed the victim. Rigual put his necklace of colored beads on the [petitioner], a sign of gang membership. The day after the murder, Ortiz and [Lester Simonetty, the petitioner's brother] purchased flares, intending to burn the van, [but the van] was recovered [by the Bridgeport police from the Evergreen Apartments] before it was burned.

“During their investigation, the police obtained statements from Ortiz, Valentin and Albert Aponte [an (acquaintance of the petitioner], each of whom recounted substantially the same facts about the victim's death.” Id., at 147, 718 A.2d 52. Ortiz had been arrested by federal authorities in New Jersey and, in exchange for leniency, provided information to state and federal authorities about the Latin Kings and various unsolved crimes, including the victim's murder. Id., at 151, 718 A.2d 52. Around the same time, Aponte, who was being held in Bridgeport on unrelated charges, “spoke with members of the Bridgeport [P]olice [D]epartment about the victim's murder. He ... [subsequently] gave them a tape-recorded statement, which was transcribed and signed under penalty of perjury.” Id. Thereafter, “Valentin was arrested by the Bridgeport police and gave [them] a signed statement, under oath and witnessed by his mother.”3 (Footnote omitted.) Id., at 152, 718 A.2d 52. The petitioner then was charged with the victim's murder.

At the petitioner's trial, Ortiz testified consistently with the statement that he had given to the police. Specifically, he explained how, in response to a query made by Rigual on the petitioner's behalf, he sought and relayed information from Roman and Morales as to how the petitioner, who had been expelled from the Latin Kings, could gain readmission into the gang. Ortiz testified that in addition to speaking with Rigual, he personally spoke with the petitioner about the matter, and pointed out the victim to him. Ortiz testified that the petitioner agreed to kill the victim, and did so about one week later, thereafter arriving at Rigual's birthday party sometime between 11 p.m. and midnight to report that the victim was dead. According to Ortiz, Rigual then put his beads around the petitioner's neck, shook his hand and saluted him. Ortiz testified that the birthday party was well attended—that it was “pretty packed” with people.

Ortiz testified further that he spoke with the petitioner again about one week after the murder, at which time the petitioner shared with him additional details about the crime. Specifically, the petitioner informed Ortiz that he had committed the murder with another individual, Black, that they had used a stolen van that was painted with primer, that Valentin had driven the van and that the petitioner had wielded an Uzi while Black fired a .38 caliber weapon. According to Ortiz, the petitioner told him that they had considered killing the victim at the Savoy Club, but there were too many people there, so the petitioner waited in the van, followed the victim when he left that establishment, and then pulled alongside the victim's vehicle and shot him after the victim had stopped and double-parked outside La Familia. Ortiz testified further that on another, subsequent occasion, he had spoken with the petitioner, Black and Valentin together, and they relayed to him the same details about the murder.4

Ortiz testified additionally that he had spoken with the petitioner's brother, Simonetty, following the murder, and the two went to buy flares to burn the van at the Evergreen Apartments. They never did so, however, because the van was gone when they returned. Finally, on both direct and cross-examination, Ortiz discussed his cooperation agreement, pursuant to which he expected lenient treatment in his own case in exchange for his testimony.

Valentin and Aponte also were called to testify at trial, but they recanted the earlier statements they had given to the police. Aponte claimed that he had fabricated his statement at Ortiz' direction when Aponte visited Ortiz while he was in federal prison. Valentin acknowledged giving his statement but denied that it was true. Consequently, Aponte's and Valentin's previous statements to police were both admitted into evidence, for substantive purposes, pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), and § 8–5(1) of the Connecticut Code of Evidence.5

In Aponte's statement, he explained that Valentin, Black and the petitioner told him details about the murder, in particular, that Valentin was driving the van, that the petitioner shot at the victim with an Uzi, and that Black brandished a .38 caliber weapon. He relayed specific details of the murder that the three participants had provided to him, namely, that they waited for the victim to leave the Savoy Club in his car, followed him to La Familia, and began shooting at him after he parked. He stated further that Black began shooting first, after which the petitioner opened the side door of the van and joined in the attack. Aponte claimed that the petitioner showed him the Uzi beforehand and told him what he planned to do. He also stated that he was privy to a conversation between Roman and the petitioner in which Roman told the petitioner to commit the murder, that he was present when the petitioner was readmitted into the gang at Rigual's birthday party, and that ...

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