Torres v. Commissioner of Correction ( 2021 )

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JULIO TORRES v. COMMISSIONER
OF CORRECTION
(AC 43902)
Alvord, Cradle and Bear, Js.
Syllabus
The petitioner, who had been convicted of the murder of the victim, sought a
writ of habeas corpus, claiming that his trial counsel rendered ineffective
assistance by permitting certain prejudicial prior misconduct evidence
to be admitted at trial. The state had indicated that it would seek to
introduce testimony from E, who had been the victim of a prior drive-
by shooting allegedly perpetrated by the petitioner, on the ground that
E’s testimony was relevant to prove that the petitioner had the means
to commit the murder of the victim. The trial court ruled that E’s testi-
mony was relevant but limited the state’s inquiry to whether E had seen
the petitioner holding a revolver. Prior to E’s testimony, the petitioner’s
counsel cross-examined two other state’s witnesses, C, the petitioner’s
parole officer, and J, a police detective. C testified that he had been
asked by J to violate the petitioner’s parole on the basis of allegations
that J never substantiated, one of which involved the drive-by shooting.
J testified that he was never able to substantiate many of those allega-
tions. The state then called E, who testified that, on the day of the drive-
by shooting, he saw the petitioner carrying a revolver. The habeas court
rejected the petitioner’s claim that his counsel’s cross-examination of
C and J opened the door to the admission of evidence that the petitioner
had been in possession of a weapon. The habeas court reasoned that
evidence that the petitioner was in possession of the weapon was not
admitted because of his counsel’s cross-examination of C and J but
because it was probative of the petitioner’s means to commit the murder.
The habeas court further reasoned that it was not objectively unreason-
able for the petitioner’s counsel to attempt to discredit J’s testimony
with evidence of the unsubstantiated allegations because counsel knew
that E was going to testify about the weapon and that E’s testimony
would be in the back of the jurors’ minds. The habeas court thus con-
cluded that the petitioner failed to establish that his trial counsel ren-
dered deficient performance or that he was prejudiced thereby. The
court denied the petition for a writ of habeas corpus and denied the
petitioner certification to appeal, and the petitioner appealed to this
court. Held that the petitioner failed to demonstrate that the habeas
court’s denial of his petition for certification to appeal constituted an
abuse of discretion, as he failed to demonstrate that the issues raised
in his petition for certification to appeal were debatable among jurists
of reason, that a court could resolve them in a different manner or that
they were adequate to deserve encouragement to proceed further; it
could not reasonably be disputed that the inquiry of C and J by the
petitioner’s counsel, viewed with an eye toward emphasizing J’s history
of lodging unsubstantiated allegations of wrongdoing against the peti-
tioner, could have inured to the favor of the petitioner, and, thus, that
a trial strategy aimed at undermining the veracity or accuracy of the
state’s witnesses, although ultimately unsuccessful, was not sound or
constituted ineffective assistance of counsel.
Argued October 13—officially released November 23, 2021
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, Newson, J.; judgment denying
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
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 assis-
tant state’s attorney, for the appellee (respondent).
Opinion
CRADLE, J. The petitioner, Julio Torres, appeals fol-
lowing 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 Rodri-
guez 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 Ser-
rano 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., 615. This court
affirmed the petitioner’s conviction. See id., 637.
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 miscon-
duct evidence to be admitted into evidence.2 Specifi-
cally, the petitioner alleged that Lorenzen was ineffec-
tive 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 evi-
dence was a contested issue in the criminal trial and
in the petitioner’s direct appeal. Prior to the commence-
ment of the petitioner’s criminal trial, the state indicated
that it would seek to introduce the testimony of Edu-
ardo 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 peti-
tioner’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 sur-
rounding 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 allega-
tions that he made pertaining to the petitioner’s involve-
ment 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 follow-
ing 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 peti-
tioner carrying a chrome plated revolver.
At the habeas trial, the petitioner argued that Loren-
zen 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 aban-
doned whatever harbor [the court created] for us.’’ Lore-
nzen 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 instruc-
tion 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 deci-
sion.
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 Jacob-
son 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 [inef-
fective 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 articula-
tions of the habeas court’s decision. The petitioner first
sought to have the trial court articulate certain findings
related to Lorenzen’s cross-examination, including
whether it was ‘‘objectively reasonable . . . for Loren-
zen to elicit misconduct evidence beyond [that allowed
by] the trial court’s ruling limiting the misconduct evi-
dence to . . . testimony that [the] petitioner [was pre-
viously] in possession of a revolver.’’ The habeas court
denied the motion, finding that all but one request for
articulation went to the performance prong of Strick-
land v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), which the court had not reached,
and that the final request was ‘‘inappropriate for a
motion for articulation.’’ On September 3, 2020, the
petitioner filed with this court a motion for review of
the habeas court’s decision. This court granted the
motion and ordered the habeas court ‘‘to articulate
whether it considered [certain allegations in the peti-
tion] and, if so, to articulate its findings and conclusions
under both the performance and prejudice prongs of
Strickland.’’
On October 26, 2020, the habeas court issued an artic-
ulation in response to this court’s order. The habeas
court articulated that it had addressed the allegations
that were subject to this court’s order and referenced
the specific pages of its memorandum of decision at
which it did so. The court further explained: ‘‘While
not specifically clear from this court’s memorandum of
decision in retrospect, the trial court’s decision to allow
testimony from witnesses on the prior misconduct came
before . . . Lorenzen cross-examined the witnesses in
question. The witnesses in question were allowed to
testify only after the trial court had ruled in the state’s
favor after hearing argument from both sides. In other
words, the trial court admitted the evidence because it
accepted the legal theory of relevance offered by the
state, not because . . . Lorenzen did, or failed to do,
anything during his subsequent cross-examination.
Since the evidence was not admitted because of what
. . . Lorenzen did on cross-examination, as asserted
by the petitioner, the petitioner failed to prove [that]
his performance was deficient. For the same reason—
that the trial court had ruled beforehand that the evi-
dence in question was admissible on the legal basis
offered by the state—this court also found that the
petitioner failed [to prove] prejudice because, notwith-
standing . . . Lorenzen’s cross-examination, the evi-
dence was going to be presented to the jury.’’ (Emphasis
altered.)
On November 4, 2020, the petitioner sought further
articulation from the habeas court on the ground that
the court ‘‘still [did] not address the petitioner’s ineffec-
tiveness claim regarding uncharged misconduct evi-
dence’’ in that, inter alia, it ‘‘[did] not address the addi-
tional misconduct evidence that [Lorenzen] elicited that
was not the subject of any court ruling.’’ The habeas
court granted the motion for further articulation in part
and denied it in part, and issued a written decision. The
habeas court articulated, inter alia, that ‘‘the court did
not find anything objectively unreasonable about . . .
Lorenzen’s performance representing the petitioner,
including his conduct [in] handling the entirety of the
prior misconduct issue. That decision, as decisions are
meant to be, was based on the sum of the whole of the
evidence before the court.’’ The court further explained:
‘‘The court found nothing objectively unreasonable
about an experienced defense attorney’s judgment that,
from his reading of the room, he believed it better to
deal with things the [jurors were] likely considering in
the back of their minds ‘head on’ instead of allowing
them to linger. . . . [N]one of this evidence had any
material impact on the outcome of the trial.’’4 Finally,
the court held: ‘‘Given the substantial circumstantial
evidence against the [petitioner]—he was the only per-
son standing close to the victim; the uncontroverted
evidence that the gunshot was from close range; and
the eyewitness account and incriminating statements
provided by his girlfriend—the court finds that the mis-
conduct evidence as a whole was immaterial to the
overall outcome of the case. Therefore, the petitioner
suffered no prejudice from this evidence within the
meaning of Strickland . . . .’’ The petitioner did not
seek further review from this court.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying 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,
[the petitioner] must demonstrate 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 then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘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.) Johnson v. Commissioner of Correc-
tion, 181 Conn. App. 572, 577–78, 187 A.3d 543, cert.
denied, 329 Conn. 909, 186 A.3d 13 (2018).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. Strickland requires that a peti-
tioner satisfy both a performance prong and a prejudice
prong. To satisfy the performance prong, a claimant
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment. . . . To satisfy
the prejudice prong, a claimant must demonstrate that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. . . . Although a petitioner
can succeed only if he satisfies both prongs, a reviewing
court can find against the petitioner on either ground
. . . . ‘‘In any case presenting an ineffectiveness claim,
the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circum-
stances. Prevailing norms of practice as reflected in
American Bar Association standards and the like . . .
are guides to determining what is reasonable . . . .
Nevertheless, [j]udicial scrutiny of counsel’s perfor-
mance 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 coun-
sel’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 con-
duct falls within the wide range of reasonable profes-
sional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . .
‘‘Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct. . . . At the
same time, the court should recognize that counsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment.’’ (Citation omit-
ted; internal quotation marks omitted.) Charles v. Com-
missioner of Correction, 206 Conn. App. 341, 346–47,
A.3d (2021).
On appeal, the petitioner takes issue with Lorenzen’s
decision to question Cardona and Jacobson regarding
the July, 2009 incident. He argues that the issue was
not ‘‘lurking,’’ as suggested by Lorenzen, because the
court had already issued an order limiting Colon’s antic-
ipated testimony, and the cross-examination of Cardona
and Jacobsen occurred prior to Colon’s testimony.
Although this is accurate, Lorenzen knew, on the basis
of the court’s prior ruling, that Colon was going to
testify that he observed the petitioner with a .38 revolver
in July, 2009. Rather than leave the jury to speculate
as to why the petitioner possessed such a weapon,
Lorenzen made the strategic decision to fill in the gaps.
We agree with the habeas court’s conclusion that there
is ‘‘nothing objectively unreasonable about an experi-
enced defense attorney’s judgment that, from his read-
ing of the room, he believed it better to deal with things
that the [jurors were] likely considering in the back of
their minds ‘head on’ instead of allowing them to linger.’’
Moreover, the record reveals that Lorenzen attempted
to discredit Jacobsen’s testimony by eliciting from him
and Cardona evidence of other unsubstantiated allega-
tions that Jacobson had made against the petitioner. It
cannot reasonably be disputed that Lorenzen’s inquiry
of Cardona and Jacobson, viewed with an eye toward
emphasizing Jacobson’s history of lodging unsubstanti-
ated allegations of wrongdoing against the petitioner,
could have inured to the favor of the petitioner. We
cannot conclude that a trial strategy aimed toward
undermining the veracity or accuracy of the state’s wit-
nesses, although ultimately unsuccessful in this case,
was not sound, or that it constituted ineffective assis-
tance of counsel.5 Accordingly, the petitioner failed to
demonstrate that Lorenzen’s representation of him was
deficient.
For the foregoing reasons, we conclude that the peti-
tioner has failed to demonstrate that the issues raised
in his petition for certification to appeal are debatable
among jurists of reason, that a court could resolve the
issues in a different manner or that the questions are
adequate to deserve encouragement to proceed further.
Thus, the petitioner has failed in his burden of demon-
strating that the court’s denial of his petition for certifi-
cation to appeal constituted an abuse of discretion. See
Johnson v. Commissioner of Correction, supra, 181
Conn. App. 577–78.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘The [petitioner] was on parole at the time of the shooting and was
required to wear an ankle bracelet to ensure that he complied with a 9
p.m. to 5 a.m. curfew. There was a monitoring unit inside the [petitioner’s]
apartment that would indicate to the monitoring agency if the [petitioner]
exceeded a range of approximately 150 feet. Police determined that the
victim’s body was located approximately 125 feet from the monitoring unit.’’
State v. Torres, 168 Conn. App. 611, 614 n.1, 148 A.3d 238 (2016), cert.
granted in part and remanded, 325 Conn. 919, 163 A.3d 618 (2017).
2
The petitioner alleged additional bases for his claim that Lorenzen failed
to provide effective assistance, but those other bases are not the subject
of this appeal.
3
In his direct appeal, the petitioner argued that the trial court had ‘‘abused
its discretion in admitting Colon’s testimony that he previously had pos-
sessed a revolver because the evidence is not relevant and, alternatively, is
more prejudicial than probative.’’ State v. Torres, supra, 168 Conn. App. 619.
4
The court denied the petitioner’s request that it articulate whether Loren-
zen’s cross-examination ‘‘open[ed] the door for the state to elicit testimony
that the petitioner had been arrested for the July, 2009 shooting and that
cocaine and heroin had been found in a search of his apartment.’’ The court
explained: ‘‘Given the finding . . . that [Lorenzen’s] overall conduct was
not deficient as to the uncharged misconduct issue, this question seeking
to parse the pieces of that evidence into smaller bits is no longer relevant.’’
To the extent the petitioner argues that Lorenzen’s cross-examination
opened the door to questions regarding the petitioner’s drug dealing, the
jury had already heard that he was involved in a ‘‘turf’’ war with the victim.
The petitioner’s girlfriend testified that the victim ‘‘came over there fighting
for the turf and that he shot him.’’
We separately note that, by virtue of the fact that the petitioner had a
parole officer, the jury was aware that he had a criminal history. Cardona
also testified regarding the ankle monitoring bracelet that the petitioner
was required to wear as a condition of his parole.
5
Because we conclude that the petitioner failed to meet the performance
prong of Strickland, we need not address the prejudice prong.