Rosa v. Commissioner of Correction , 171 Conn. App. 428 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
VINCENTE ROSA v. COMMISSIONER OF
CORRECTION
(AC 37573)
Lavine, Mullins and Harper, Js.
Argued September 20, 2016—officially released March 14, 2017
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
David B. Rozwaski, assigned counsel, for the appel-
lant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Erika L. Brookman, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
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 con-
clude 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 Statues § 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 delibera-
tions 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 con-
taining 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 petition-
er’s] family has been outside the lobby of the court-
house. They also expressed they haven’t bothered
anybody.’’ After discussing the jury’s note with the par-
ties, 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 sen-
tenced to a total effective sentence of fifty-four years
of incarceration.3
On February 14, 2014, the petitioner filed the opera-
tive 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 assis-
tance 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 pre-
sented 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 deci-
sion.’’ 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 peti-
tioner failed to prove that there was a reasonable proba-
bility 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 con-
cerns 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 testi-
mony 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 erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Gerald W. v. Commissioner of Correction, 169 Conn.
App. 456, 465, A.3d (2016).
It is well settled that ‘‘[i]n order to establish an ineffec-
tive assistance of counsel claim a petitioner must meet
the two-pronged test enunciated in Strickland v. Wash-
ington, [supra, 466 U.S. 687]. Specifically, the claim
must be supported by evidence establishing that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings 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 inef-
fective 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. Com-
missioner of Correction, 322 Conn. 664, 706, 142 A.3d
1095 (2016). ‘‘It is not enough to merely point to evi-
dence in the record that contradicts the court’s find-
ings.’’ Marquez v. Commissioner of Correction, 170
Conn. App. 231, 238, A.3d (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, partic-
ularly 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 petition-
er’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 omitted]), cert. denied, 306
Conn. 903, 52 A.3d 730 (2012). Our review of the habeas
record supports the court’s conclusion that the choice
not to move for a mistrial was a sound tactical decision.
It was a deliberate decision made by Lorenzen after
discussing various strategic options with his cocounsel.
They determined that there remained a possibility that
the jury would acquit the petitioner and sought to avoid
losing that possibility. Instead, as planned, they pre-
served the issue in a motion for a new trial after the jury
returned a guilty verdict on three of the four charges. We
agree with the habeas court that this process reveals
that ‘‘[t]his decision was strategic in nature,’’ and that it
was the result of the exercise of reasonable professional
judgment, which we decline to second-guess.6 See
Smith v. Commissioner of Correction, 148 Conn. App.
517, 531, 85 A.3d 1199 (reviewing courts do not, with
benefit of hindsight, second-guess tactical and strategic
decisions of counsel arrived at with benefit of experi-
ence, deliberation, and professional judgment), cert.
denied, 312 Conn. 901, 91 A.3d 908 (2014).
For the foregoing reasons, we conclude that the
habeas court properly denied the petition for a writ of
habeas corpus because the petitioner failed to establish
that Lorenzen performed deficiently.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘[A] claim must be raised and briefed adequately in a party’s principal
brief, and the failure to do so constitutes the abandonment of the claim.’’
State v. Elson, 311 Conn. 726, 766, 91 A.3d 862 (2014). In addressing his
first claim, that counsel failed to adequately advise him regarding sentencing,
the petitioner fails to attack, as he must, the factual findings of the habeas
court on which its decision rested. Rather, he states in conclusory fashion
that those findings are ‘‘incorrect.’’ He proceeds to argue the issue by citing
only to evidence the court found incredible without addressing this credibil-
ity determination, which is beyond our review. 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
omitted]), cert. denied, 306 Conn. 903, 52 A.2d 730 (2012). Moreover, it is
not enough merely to point to evidence in the record that contradicts the
court’s findings when other evidence in the record supports the court’s
findings. The petitioner must show that a review of the entire record will
leave this court with the definite and firm conviction that a mistake has
been committed. See State v. Krijger, 313 Conn. 434, 446, 97 A.3d 946 (2014).
Turning to his third claim, that the failure to present the testimony of the
petitioner’s family at sentencing was deficient performance, we similarly
decline to review the claim for failure to brief the claim adequately. The
petitioner claims that the testimony of his family members would have been
beneficial to the petitioner because those relatives could have provided
more accurate information about the petitioner, including details of his
alleged learning disabilities. Nevertheless, he fails to attack the dispositive
finding of the habeas court that the petitioner failed to present any credible
evidence in support of his claim. Without attacking this finding, the petitioner
cannot prevail on this claim.
2
This court’s opinion in the petitioner’s direct appeal provides a full
exposition of the facts that the jury reasonably could have found at the
criminal trial. See State v. Rosa, 104 Conn. App. 374, 375, 933 A.2d 731 (2007),
cert. denied, 286 Conn. 906, 944 A.2d 980 (2008). Much of this information is
not relevant to the narrow issue before the court here.
3
The petitioner’s sentence consisted of fifty-two years of incarceration on
the felony murder conviction to be followed consecutively by two concurrent
sentences of two years each for the criminal use of a firearm and criminal
possession of a firearm convictions.
4
The petition contained numerous other claims that were either with-
drawn prior to the habeas trial, are not raised in this appeal, or were
raised but which we have declined to review due to inadequate briefing.
See footnote 1 of this opinion.
5
Within the petitioner’s briefing of his mistrial claim, he appears to include
a claim that Lorenzen was prejudicially deficient in failing to voir dire the
jury to determine the extent of any bias after the jury sent its note to the
trial court. This is a distinct claim from the petitioner’s mistrial claim and
was neither raised in the operative habeas petition nor ruled on by the
habeas court. ‘‘A reviewing court will not consider claims not raised in the
habeas petition or decided by the habeas court.’’ Henderson v. Commis-
sioner of Correction, 129 Conn. App. 188, 198, 19 A.3d 795, cert. denied,
303 Conn. 901, 31 A.3d 1177 (2011). Accordingly, to the extent petitioner
intended to raise this claim here, we decline to review it.
6
We need not reach the question of whether the petitioner suffered preju-
dice because the failure to prove either prong of the Strickland standard
is determinative of the petitioner’s ineffective assistance of counsel claim.
See Jones v. Commissioner of Correction, 152 Conn. App. 110, 115, 96 A.3d
1271, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).