Benitez v. Warden, CV144005878S

Jorge BENITEZ (Inmate #162216) v. WARDEN

No. CV144005878S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

June 8, 2018

UNPUBLISHED OPINION

OPINION

Mullarkey, J.T.R.

The petitioner, Jorge Benitez, initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on December 2, 2014, and which was amended twice after the assignment of counsel. The second amended petition raises a single claim, namely ineffective assistance of trial counsel and/or appellate counsel, although premised on several alleged deficiencies. The respondent’s return denies the petitioner’s material allegations.

The parties appeared before the court for a trial on the merits. The petitioner testified and presented the testimony of his former trial counsel, Attorney (now Magistrate) Wayne Keeney as well as his expert on criminal law, Attorney Frank Riccio. The petitioner entered into evidence documents consisting of copies of lab results, a police investigation report, an application to disclose telephone records, telephone records and transcripts from the criminal and prior habeas corpus proceedings. The respondent entered transcripts of two criminal proceedings into evidence.

For the reasons articulated more fully below, the petitioner’s claims are denied.

FINDINGS OF FACTS

The Appellate Court’s decision on direct appeal summarized the underlying facts. "The jury reasonably could have found that, following a dispute involving the sale of automobiles by the victim to the [petitioner], the [petitioner] hired Jorge Delgado to set fire to a storage shed on the victim’s property. On April 19, 2006, Delgado and his brother, Frankie Delgado, entered the shed and, using accelerant, set fire to it. As the brothers fled from the scene, the victim, who was guarding his property while armed with a rifle, discharged his rifle in their direction. Jorge Delgado was struck in the arm by a bullet. Later, Jorge Delgado implicated the [petitioner] in the plan to set the fire.

"The victim attempted to put out the fire, to no avail. The fire destroyed the victim’s shed and damaged the victim’s boat. The fire also damaged a neighbor’s storage shed, siding on a neighbor’s residence, a fence bordering the victim’s property and several trees. A member of the victim’s family called 911, and firefighters from several fire departments responded to the scene. One firefighter sustained an ankle injury while battling the fire ...

"The record reflects that, on May 21, 2008, the state filed a motion in limine, requesting that the jury be permitted to tour the crime scene and to hear ‘a brief description of the scene’ from Joseph McCusker, a state police detective. The [petitioner] joined in the state’s motion, and it was granted by the court. Prior to the visit, the parties agreed on a list of points of interest at the crime scene that McCusker would identify for the jury.

"There is no transcript of what McCusker stated during the visit to the crime scene. When court reconvened following the visit, the [petitioner’s] attorney objected to McCusker’s commentary at the crime scene, recalling that McCusker had deviated from the commentary agreed on by the parties. Although the court disagreed with defense counsel’s recollection of McCusker’s comments, it delivered a curative instruction to the jury. The [petitioner’s] attorney agreed with the instruction and did not revisit the issue during the remainder of the trial. After the [petitioner] filed the present appeal, he filed three motions for articulation related to the jury’s visit to the crime scene. In relevant part, the court responded by stating that there was no transcript of McCusker’s remarks at the crime scene and that, to its recollection, McCusker had not deviated from noting the points of interest on which the parties had agreed." State v. Benitez, 122 Conn.App. 608, 610-12, 998 A.2d 844 (2010).

"Following [its] careful review of the evidence presented at trial, [the Appellate Court] conclude that the evidence supported a finding that, at the scene of the fire on the victim’s property, ‘a peace officer or firefighter [was] subjected to a substantial risk of bodily injury.’ General Statutes § 53a-111(a)(4). The state presented evidence of the following facts. The fire occurred at night, and it was set in a wooden structure that was in proximity to residential structures. Flames from the fire reached heights of approximately seventy-five feet. The victim’s property is located in a rural, wooded location without fire hydrants nearby. Firefighters from several fire departments had to transport water to the scene. The victim’s property featured hilly terrain that required the responding firefighters to exercise extra caution in battling the fire. Additionally, the state presented evidence that one firefighter at the scene, Rocco Navarro, sustained a fractured ankle when a pressurized water hose struck him. On the basis of this evidence, and the rational inferences drawn therefrom, [the Appellate Court] conclude[d] that the state presented sufficient evidence to satisfy its burden of proof as to the essential element of the crime challenged on appeal. Accordingly, [the Appellate Court upheld] the court’s denial of the defendant’s motion." Id., 616-17.

The petitioner was sentenced to a total effective sentence of fifteen years of incarceration, execution suspended after the service of thirteen years, followed by five years of probation. On direct appeal, the petitioner "claim[ed] that (1) the trial court deprived him of a fair trial by failing to ensure that a record was created of what transpired when the jury visited the scene of the crime, (2) prosecutorial impropriety deprived him of a fair trial and (3) the court improperly denied his motion for a judgment of acquittal as to the crime of arson in the first degree." Id., 610. The Appellate Court affirmed the judgment of conviction. Id., 617.

Additional facts will be discussed below as necessary to address the petitioner’s specific claims.

DISCUSSION

The trial on the petitioner’s amended petition was held on January 24, 2018, based on the petitioner’s second amended petition claiming ineffective assistance of counsel. The petition alleges two areas of failure on the part of trial counsel.^[1] The first claim revolves around trial counsel’s failure to hire an arson expert, thereby being unprepared to cross-examine the state’s forensic experts. The second claim asserts that trial counsel should have moved for a mistrial and/or rectification of the record after claimed excessive testimony by Detective McCusker during a visit to the site of the arson.

" ‘In Strickland v. Washington, [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction ... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense ... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable ... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.’ (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn.App. 425, 429-30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

" ‘To satisfy the performance prong [of the Strickland test] the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’ (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn.App. 291, 295, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). ‘[A] court 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 challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 135 Conn.App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).

" ‘With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings ... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn.App. at 430, 17 A.3d 1089." Holloway v. Commissioner of Correction, 145 Conn.App. 353, 364-65, 77 A.3d 777 (2013).

The petitioner fails to recognize that his underlying arson trial was a WHO case (i.e., who was responsible for the arson) not a WHAT case (i.e., how the arson was committed). The arson was observed by the victim, whose testimony was bolstered by the cooperating co-conspirators, as well as by the state’s forensic experts. Seldom do arson cases yield two eyewitnesses to the act. Magistrate Wayne Keeney was defense cou...