Flores v. Commissioner of Correction ( 2014 )

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LUIS FLORES v. COMMISSIONER OF CORRECTION
(AC 36236)
Beach, Prescott and Foti, Js.
Argued October 27—officially released December 16, 2014
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Cameron R. Dorman, assigned counsel, for the appel-
lant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Kelly A. Masi, assistant state’s
attorney, for the appellee (respondent).
Opinion
FOTI, J. The petitioner, Luis Flores, appeals following
the habeas court’s denial of his petition for certification
to appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
petitioner claims that the habeas court (1) abused its
discretion by denying certification to appeal, and (2)
improperly concluded that the petitioner failed to estab-
lish that defense counsel in his underlying criminal trial
rendered ineffective assistance by failing to move for
a mistrial. We dismiss the appeal.
The following facts and procedural history, as taken
from the petitioner’s direct appeal and adopted by the
habeas court, are relevant in this appeal. After a jury
trial, ‘‘[the] jury found the [petitioner] . . . guilty of
kidnapping in the first degree in violation of General
Statutes §§ 53a-92 (a) (2) (B) and 53a-8 (a), robbery in
the first degree in violation of General Statutes §§ 53a-
134 (a) (4) and 53a-8 (a), conspiracy to commit robbery
in the first degree in violation of § 53a-134 (a) (4) and
General Statutes § 53a-48 (a), burglary in the second
degree in violation of General Statutes (Rev. to 2003)
§ 53a-102 (a) (2) and § 53a-8 (a), conspiracy to commit
burglary in the second degree in violation of General
Statutes (Rev. to 2003) § 53a-102 (a) (2) and § 53a-48
(a), and two counts of larceny in the third degree in
violation of General Statutes (Rev. to 2003) § 53a-124 (a)
(1) and § 53a-8 (a). The trial court rendered judgment in
accordance with the jury verdict and sentenced the
[petitioner] to a total effective sentence of sixteen years
imprisonment. . . .
‘‘The jury reasonably could have found the following
facts. At approximately 6 a.m. on August 13, 2004, the
[petitioner], together with Luis Vega and Jorge Marrero,
entered the apartment of Madeline Garay . . . . After
entering the apartment, the three men proceeded to the
bedroom where Garay and her boyfriend, Carlos Ortiz,
were sleeping. . . . The [petitioner] awakened Garay
by tapping her on the shoulder with a gun and whisper-
ing, ‘[where’s] the money . . . ?’ Garay, fearing for her
life, responded in a loud voice that there was no money.
. . . While the [petitioner] was attempting to cover her
mouth, Garay recognized the [petitioner’s] voice and a
distinctive roll of fat on the back of his neck. She called
out his name to see if it was him, and the [petitioner]
immediately responded and told her, ‘don’t worry, we’re
not going to hurt you.’ He then turned to Vega and
Marrero and said: ‘Fuck it. She . . . know[s] who we
are.’ . . .
‘‘The [petitioner], Vega and Marrero left the apart-
ment as soon as they had finished searching the bed-
room, taking with them Garay’s two sets of car keys,
the keys to her apartment, her jewelry, and her cell
phone. Once outside, the [petitioner], Vega and Marrero
drove away in Garay’s two automobiles. The entire inci-
dent lasted between five and twenty minutes.’’ (Citation
omitted; footnotes omitted.) State v. Flores, 301 Conn.
77, 79–82, 17 A.3d 1025 (2011).
The petitioner appealed from his conviction to our
Supreme Court, which reversed the judgment of convic-
tion on the kidnapping charge and affirmed the convic-
tion in all other respects. Id., 80. On August 13, 2013,
the petitioner filed an amended petition for a writ of
habeas corpus, alleging ineffective assistance of coun-
sel. The petitioner claimed that his trial attorney had
rendered ineffective assistance by failing to move for
a mistrial after Ortiz disclosed that the other individuals
involved in the crime had pleaded guilty. Following a
full trial, the habeas court found that counsel’s failure
to move for a mistrial was not prejudicial because the
trial court provided the jury with a curative instruction.
The habeas court denied the petition for a writ of habeas
corpus. The habeas court then denied the petition for
certification to appeal on the claim of ineffective assis-
tance of counsel. This appeal followed.1
The following additional facts, as found by the habeas
court, are relevant to this claim. During the criminal
trial, Ortiz ‘‘gratuitously’’ testified during defense coun-
sel’s cross-examination that the ‘‘other guys’’ (Vega and
Marrero) who had been charged in connection with the
robbery had pleaded guilty.2 The trial court instructed
Ortiz to answer only the questions presented. Defense
counsel asked two additional questions, and then con-
ferred with the state and the trial court outside the
presence of the jury. Both the state and defense counsel
requested that the court strike the inadmissible portion
of Ortiz’ testimony and give a curative instruction to
the jury. The trial court provided the instruction imme-
diately after the jury re-entered the courtroom.3
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United
States Supreme Court in Lozada v. Deeds, 498 U.S. 430,
431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as
the appropriate standard for determining whether the
habeas court abused its discretion in denying certifica-
tion to appeal. This standard requires the petitioner to
demonstrate that the issues 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. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Blake v. Commissioner of Correction, 150
Conn. App. 692, 695, 91 A.3d 535, cert. denied, 312 Conn.
923, 94 A.3d 1202 (2014).
Furthermore, ‘‘[i]n a habeas appeal, this 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 consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is [a mixed question
of law and fact and therefore] plenary.’’ Joseph v. Com-
missioner of Correction, 153 Conn. App. 570, 575,
A.3d (2014).
‘‘As enunciated in Strickland v. Washington, [466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)],
this court has stated: It is axiomatic that the right to
counsel is the right to the effective assistance of coun-
sel. . . . A claim of ineffective assistance of counsel
consists of two components: a performance prong and
a prejudice prong. To satisfy the performance prong
. . . 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. . . . To
satisfy the prejudice prong, a claimant must demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’’ (Internal quota-
tion marks omitted.) Anderson v. Commissioner of
Correction, 313 Conn. 360, 375–76, 98 A.3d 23 (2014).
Upon review, we conclude that the habeas court
properly found that the petitioner was not prejudiced
by his counsel’s failure to move for a mistrial. As we
have long recognized, although the remedy of a mistrial
is allowed under our rules of practice, it is strongly
disfavored. ‘‘[A] mistrial should be granted only as a
result of some occurrence upon the trial of such a
character that it is apparent to the court that because
of [the occurrence] a party cannot have a fair trial.’’
(Internal quotation marks omitted.) State v. Guilbert,
306 Conn. 218, 270, 49 A.3d 705 (2012). It is a remedy
that is, as the habeas court described, ‘‘draconian,’’ and
one that is addressed to ‘‘the sound discretion of the
trial court and is not to be granted except on substantial
grounds.’’ (Internal quotation marks omitted.) State v.
Reilly, 141 Conn. App. 562, 568, 61 A.3d 598 (2013).
The use of curative actions, such as those adopted
by the trial court in this case, are highly encouraged.
‘‘If curative action can obviate the prejudice, the drastic
remedy of a mistrial should be avoided.’’ (Internal quo-
tation marks omitted.) State v. Guilbert, supra, 306
Conn. 270. In the present case, the curative action taken
by the trial court was sufficient to remedy any prejudice
which might have been suffered by Ortiz’ unsolicited
testimony regarding the guilty pleas of Vega and Mar-
rero. The trial court provided explicit curative instruc-
tions immediately following the testimony, and
reiterated in its final instructions that stricken testi-
mony should not be considered. Absent evidence to the
contrary, ‘‘jurors are presumed to follow the instruc-
tions that they are given.’’ (Internal quotation marks
omitted.) State v. Reynolds, 152 Conn. App. 318, 332,
97 A.3d 999, cert. denied, 314 Conn. 934, A.3d
(2014). The habeas court credited defense counsel’s
testimony that, as a consequence of the curative instruc-
tion, the impact of Ortiz’ unsolicited testimony on the
jury was fleeting at best.
On the basis of our review of the record, we conclude
that ‘‘the petitioner has not proven that the issues in
the underlying claim are debatable among jurists of
reason, that a court could resolve the issues in a differ-
ent manner, or that the questions are adequate to
deserve encouragement to proceed further.’’ Michael
G. v. Commissioner of Correction, 153 Conn. App. 556,
562, A.3d (2014). We therefore conclude that
the habeas court did not abuse its discretion in denying
the petition for certification to appeal from the judg-
ment denying the petitioner’s amended petition for a
writ of habeas corpus.
The appeal is dismissed.
In this opinion BEACH, J., concurred.
1
In his brief and during oral argument before this court, the respondent,
the Commissioner of Correction, argued that the petitioner’s ineffective
assistance of counsel claim is not reviewable because it was not raised in
the habeas court. The respondent claims that during the habeas trial the
petitioner argued only that he was prejudiced during the underlying criminal
trial because Ortiz’ testimony constituted a violation of Crawford v. Wash-
ington, 541 U.S. 36, 54–56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We
disagree with the respondent’s argument that the petitioner’s claim was not
raised at the habeas trial.
2
Ortiz testified in part as follows:
‘‘[Defense Counsel]: After August 13, 2004, you and Miss Garay never
discussed this?
‘‘[Ortiz]: No. After November because [the] incident happened recently
with me and Madeline when she don’t see me, and Madeline still speak to
this past Thanksgiving. Right now to the November, that incident happened,
and we don’t speak no more. Until then everything was fine. We didn’t
expect him to take it to trial. The same, other guys pled guilty. He’s the
only one that wants to go back.
‘‘The Court: Just answer the questions.
‘‘[Ortiz]: I’m answering the question, Your Honor.’’ (Emphasis added.)
3
The court instructed the jury as follows: ‘‘Ladies and gentlemen, in
answering the last question, the witness referred to other guys, the other
guys and his understanding of the disposition of their particular case or
cases, and that is completely irrelevant. I am ordering it stricken. It will be
stricken, and the jury is to disregard that portion of the evidence.’’