Torres v. Comm'r of Corr.

• Decision Date: 23 November 2021
• Docket Number: AC 43902
• Citation: 265 A.3d 980,208 Conn.App. 803
• Parties: Julio TORRES v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

208 Conn.App. 803

265 A.3d 980

Julio TORRES

v.COMMISSIONER OF CORRECTION

AC 43902

Appellate Court of Connecticut.

Argued October 13, 2021

Officially released November 23, 2021

Deren Manasevit, assigned counsel, for the appellant (petitioner).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Leah Hawley, former senior assistant state's attorney, for the appellee (respondent).

Alvord, Cradle and Bear, Js.

CRADLE, J.

The petitioner, Julio Torres, appeals following the denial 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 court abused its discretion in denying his petition for certification on the ground that he failed to demonstrate that he had been denied the effective assistance of counsel in his underlying criminal trial. We disagree and, accordingly, dismiss the appeal.

The following facts were set forth by this court in the petitioner's direct appeal from his conviction. "On the night of October 9, 2009, the [petitioner], Jorge Zayas, Ricco Correa, and Jose Serrano were drinking alcohol on the porch behind the [petitioner's] apartment in Hartford. At one point, the victim and Michael Rodriguez drove into the well lit parking lot adjacent to the [petitioner's] apartment building. When the victim exited the car, the [petitioner], Zayas, Correa, and Serrano approached him, and an argument ensued. During the argument, Correa passed a gun to the [petitioner]. After taking the gun, the [petitioner] shot the victim once in the head at close range, killing him.¹

"Rodriguez, who was standing in the parking lot when the shooting took place, did not see who shot the victim, but heard the gunshot and immediately turned around and saw that the [petitioner] was the only person close to the victim's body. Seeing Zayas, Correa, and Serrano standing twenty to twenty-five feet away, Rodriguez fled the scene on foot. Correa, who had taken back the gun used to shoot the victim, pursued Rodriguez while the [petitioner], Zayas, and Serrano stood in the parking lot yelling, ‘[k]ill him. Kill him.’

"The [petitioner's] girlfriend ... observed the whole incident from the doorway of the [petitioner's] apartment. After witnessing the [petitioner] shoot the victim, [she] went back into the [petitioner's] apartment and pretended to be asleep. The [petitioner] ran into the apartment and stated to [her], ‘I killed him. I killed him. Get up.’ The [petitioner] told [her] that the victim ‘came over there fighting for the turf and that he shot him.’ A few minutes later, the [petitioner] received a phone call from Correa, who told the [petitioner] that he had ‘mistakenly shot someone else thinking it was [Rodriguez], but that he was tossing the gun in the river.’ [The petitioner's girlfriend] could not remember the type of gun the [petitioner] used to shoot the victim.

"At approximately 1:15 a.m. on October 10, 2009, police arrived at the scene of the shooting in response to a 911 call. Officers found the victim in the parking lot behind the apartment building, bleeding from the right side of his head. The victim was pronounced dead at the scene. Susan Williams, an associate medical examiner for the state, determined that the cause of death was a single gunshot wound to the right side of the head. Williams estimated that, on the basis of soot and stippling patterns around the entrance wound, the muzzle of the gun was approximately six to ten inches from the right side of the victim's head when it was fired." (Footnote in original; footnote omitted; internal quotation marks omitted.) State v. Torres , 168 Conn. App. 611, 613–15, 148 A.3d 238 (2016), cert. granted in part and remanded, 325 Conn. 919, 163 A.3d 618 (2017).

In 2013, the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a and thereafter sentenced to a total effective term of fifty years of incarceration. Id., at 615, 148 A.3d 238. This court affirmed the petitioner's conviction. See id., at 637, 148 A.3d 238.

On April 16, 2015, the petitioner filed this action for a writ of habeas corpus. By way of an amended petition dated August 1, 2018, the petitioner claimed that his trial counsel, Bruce Lorenzen, provided ineffective assistance by, inter alia, allowing certain prior misconduct evidence to be admitted into evidence.² Specifically, the petitioner alleged that Lorenzen was ineffective in that he "opened the door" to the admission of evidence pertaining to an incident that occurred three months prior to the incident in this case in which he allegedly shot an individual with a .38 revolver, the type of weapon that may have been used in this case.

The transcripts from the petitioner's criminal trial, which were admitted into evidence at the habeas trial, reveal that the admission of the prior misconduct evidence was a contested issue in the criminal trial and in the petitioner's direct appeal. Prior to the commencement of the petitioner's criminal trial, the state indicated that it would seek to introduce the testimony of Eduardo Colon, who had been the victim of a prior drive-by shooting allegedly perpetrated by the petitioner.³ The state proffered that Colon would testify that, on July 19, 2009, the petitioner had shot him with a chrome revolver during a nonfatal drive-by shooting for which the petitioner was charged with assault in the first degree. The state argued that Colon's testimony was relevant to prove that the petitioner had the means to commit the murder of the victim.

On behalf of the petitioner, Lorenzen argued that this evidence was more prejudicial than probative. Lorenzen further contended that there was not an established connection between the revolver previously observed in the petitioner's possession and the shooting of the victim here. He also asserted that the prior incident was remote in time from the present murder.

The court ruled that Colon's testimony was relevant but limited the state's inquiry to whether Colon saw the petitioner holding a revolver. To alleviate the petitioner's concern that undue prejudice could result from a detailed discussion of that prior possession of the weapon, the court prohibited the state from probing into the circumstances and the assault allegations surrounding that prior possession.

Before the state called Colon as a witness at trial, it called Edwin Cardona, the petitioner's parole officer, and Detective Andrew Jacobson of the Hartford Police Department to testify. Through his cross-examination of Cardona, Lorenzen elicited testimony that Jacobson previously had asked Cardona to violate the petitioner's parole on the basis of allegations that Jacobson never substantiated. One such instance involved the July, 2009 incident. When Lorenzen cross-examined Jacobson, he inquired about several unproven allegations made by Jacobson in multiple letters Jacobson had addressed to the parole board seeking to have the petitioner's parole violated. Lorenzen asked Jacobson about allegations that he made pertaining to the petitioner's involvement in the July, 2009 incident, an allegation that the petitioner killed the victim after a physical altercation arising from a drug dispute, and an allegation that the petitioner was observed with a firearm the day following that murder. Jacobson acknowledged that he was never able to substantiate many of those allegations. Thereafter, consistent with the court's previous ruling, Colon testified that, on July 19, 2009, he saw the petitioner carrying a chrome plated revolver.

At the habeas trial, the petitioner argued that Lorenzen was ineffective in that he "opened the door" to the admission of prejudicial misconduct evidence when he cross-examined Cardona and Jacobson regarding the 2009 incident involving Colon. When asked about his cross-examination of Jacobson, Lorenzen testified that, "at some point, we—[the] defense essentially abandoned whatever harbor [the court created] for us." Lorenzen explained: "[T]he best way I could describe it is that it had gotten to the point that it was—the issue was lurking and it was better to meet it head on rather than to try and continue to stay within whatever the boundaries [the court] had set." When questioned why he asked the state's witnesses about the July, 2009 shooting, Lorenzen reiterated: "[T]he most basic reason was, it had come out in a way that I felt it was better to deal with it in the open rather than to leave the jury to, perhaps, speculate on what had happened." Lorenzen acknowledged that he "could have relied on a curative instruction rather than bring this information out [him]self," but he did not rely on a curative instruction because "juries don't always follow instruction[s]." Lorenzen testified that his cross-examination of the lead detective in the petitioner's case was a strategic decision.

The habeas court rejected the petitioner's argument that Lorenzen "opened the door" to the admission of prejudicial misconduct evidence. The court ruled that evidence that the petitioner was in possession of a .38 caliber weapon in July, 2009, was not admitted because of Lorenzen's cross-examination of Cardona and Jacobson but because it was probative of the petitioner's means to commit the crime of murder. The court explained: "Since the trial court admitted the evidence on an independent legal theory offered by the state, the petitioner has failed to establish that it would not have been admissible but for counsel's cross-examination questions. ... As such, he has failed to establish either deficient performance or prejudice and the [ineffective assistance] claim fails." (Citation omitted; emphasis in original.) The court denied his petition for certification to appeal and this appeal followed.

The petitioner thereafter sought multiple articulations of the habeas court's decision. The petitioner first...