Rosa v. Comm'r of Corr.

171 Conn.App. 428

157 A.3d 654

Vincente ROSA

v.COMMISSIONER OF CORRECTION

AC 37573

Appellate Court of Connecticut.

Argued September 20, 2016

Officially released March 14, 2017

David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Erika L. Brookman, senior assistant state's attorney, for the appellee (respondent).

Lavine, Mullins and Harper, Js.

HARPER, J.

The petitioner, Vincente Rosa, appeals following the denial of his petition for a writ of habeas corpus. The habeas court granted certification to appeal on the petitioner's claims that it improperly concluded that his criminal trial counsel, Bruce Lorenzen, did not provide ineffective assistance of counsel by failing (1) to adequately advise the petitioner regarding plea offers, (2) to move for a mistrial regarding potential juror bias, and (3) to prepare and adequately argue for sentence mitigation with testimony from petitioner's family. After reviewing the petitioner's brief, we conclude that the petitioner has failed to brief adequately the first and third issues and, accordingly, we decline to review these claims.¹ Regarding the petitioner's remaining claim, we conclude that the court properly determined that the petitioner's counsel did not provide ineffective assistance, and, accordingly, we affirm the judgment of the habeas court.

The following facts found by the habeas court and procedural history are relevant to our resolution of the petitioner's claims.² The petitioner's conviction arises from events that occurred on December 23, 2002, during which he fatally shot Orlando Ocasio in what can be fairly described as a drug deal gone wrong.

State v. Rosa , 104 Conn.App. 374, 375, 933 A.2d 731 (2007), cert. denied, 286 Conn. 906, 944 A.2d 980 (2008). The petitioner was arrested for this killing on or about December 27, 2002. He was charged with murder in violation of General Statutes § 53a–54a, felony murder in violation of General Statutes § 53a–54c, criminal use of a firearm in violation of General Statutes § 53a–216, and criminal possession of a firearm in violation of General Statutes § 53a–217. The principal evidence against the petitioner was his confession to shooting the victim.

The petitioner elected a trial by jury. During deliberations on March 16, 2005, the jury sent a note to the court in which the members of the jury expressed concern for their safety. The note was not entered into evidence at the habeas proceeding; however, the transcript containing the trial court's discussion of this note with the parties is a part of the habeas record. The trial court stated that "most of the jurors feel that if they deliver an unfavorable verdict towards the [petitioner], that the family may have—whatever—retribution as we exit the court property. Every time we have left, [the petitioner's] family has been outside the lobby of the courthouse. They also expressed they haven't bothered anybody." After discussing the jury's note with the parties, the trial court addressed the jury on the record and attempted to assuage their fears by explaining that the court had never seen an incident of violence against a juror in more than thirty years in criminal court. The jury also was told that if a serious safety concern arose, the state would provide judicial marshals as escorts and "whatever precautions that [the jurors] feel are necessary." At no time during these events did Lorenzen move for a mistrial on the ground that the jury's note indicated potential juror bias.

Thereafter, on March 17, 2005, the jury found the petitioner guilty of felony murder and criminal use of a firearm, and the court found him guilty of criminal possession of a firearm. On June 3, 2005, he was sentenced to a total effective sentence of fifty-four years of incarceration.³

On February 14, 2014, the petitioner filed the operative petition for a writ of habeas corpus alleging, as is relevant here,⁴ that Lorenzen's deficient performance in failing to move for a mistrial based on juror bias deprived the petitioner of his right to the effective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. At the habeas trial, the petitioner presented the testimony of, among others, Lorenzen. The habeas court's factual findings regarding this claim expressly were tied to its credibility determination of Lorenzen's testimony. In particular, the habeas court found that "the credible evidence produced at trial established that ... Lorenzen's decision not to move for a mistrial after the jurors' note was a tactical decision." The court credited Lorenzen's testimony that he believed that there was a possibility that the petitioner might win an acquittal from this particular jury, and he wished to protect that chance by not seeking a mistrial. The habeas court noted that this is the type of strategic decision that reviewing courts are reluctant to second-guess. Finally, the court also concluded that the petitioner failed to prove that there was a reasonable probability that a motion for a mistrial would have been granted. For these reasons, the court denied the petition on December 5, 2014.

On December 19, 2014, the habeas court granted the petition for certification to appeal from the denial of the petition for a writ of habeas corpus. In this appeal, the petitioner contends that the habeas court erred in concluding that trial counsel did not perform deficiently in that Lorenzen made a sound strategic decision not to seek a mistrial when the jurors had expressed concerns for their safety in rendering a verdict against the petitioner. He argues, in essence, that the state's evidence against the petitioner was so strong that the habeas court should not have credited Lorenzen's testimony that he believed an acquittal was possible with this jury and that he chose not to seek a mistrial in order to preserve the chance of receiving an acquittal from this jury.⁵ We disagree.

"It is well settled that in reviewing the denial of a habeas petition alleging the ineffective assistance of counsel, [t]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Gerald W. v. Commissioner of Correction , 169 Conn.App. 456, 465, 150 A.3d 729 (2016).

It is well settled that "[i]n order to establish an ineffective assistance of counsel claim a petitioner must meet the two-pronged test enunciated in Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052]. Specifically, the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. ... Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim." (Emphasis in original; internal quotation marks omitted.) Robinson v. Commissioner of Correction , 167 Conn.App. 809, 817, 144 A.3d 493, cert. denied, 323 Conn. 925, 149 A.3d 982 (2016).

"A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Newland v. Commissioner of Correction , 322 Conn. 664, 706, 142 A.3d 1095 (2016). "It is not enough to merely point to evidence in the record that contradicts the court's findings." Marquez v. Com missioner of Correction , 170 Conn.App. 231, 238, 154 A.3d 73 (2017).

The petitioner argues that it was improper for the habeas court to conclude that failing to move for a mistrial was a sound strategic decision and not deficient performance. The petitioner asserts that the state's case was so strong that it was doubtful the jury could acquit the petitioner. Because this verdict was so unlikely, the petitioner asserts it could not have been a sound tactical decision to choose not to make a meritorious motion for a mistrial out of a desire to protect this remote possibility. We find this argument unpersuasive, particularly in light of the fact that the petitioner actually was acquitted of the murder charge.

The petitioner fails to address the habeas court's express crediting of Lorenzen's testimony. The petitioner's argument would require this court to reverse that credibility determination, which we should not and will not do. See State v. Francione , 136 Conn.App. 302, 312, 46 A.3d 219 ("[a]n appellate court does not retry the case or evaluate the credibility of the witnesses" [internal quotation marks...