Benitez v. Commissioner of Correction

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JORGE BENITEZ v. COMMISSIONER
OF CORRECTION
(AC 41891)
Lavine, Bright and Sheldon, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that his trial counsel
had rendered ineffective assistance for failing to hire or to consult with
a defense expert in arson investigation before trial. The petitioner had
been convicted of various offenses in connection with his role in planning
and recruiting two brothers, J and F, to burn the shed of the victim, G,
with whom he quarreled over used car transactions. After G had removed
two cars from the petitioner’s used car lot, the petitioner took various
actions that G interpreted as threats to his safety and his wife’s safety.
G testified that the petitioner left two sealed envelopes with ‘‘funny
money’’ inside on G’s lawn, indicating to G an intent to retaliate. When
he thereafter observed two men near his shed just before it burst into
flames, he fired a gun at the men as they fled, striking one man in the
arm. J sought treatment that evening in a Massachusetts hospital for a
gunshot wound to his arm; DNA from his blood was recovered outside
G’s home. At the criminal trial, J testified that the petitioner had hired
him and F to burn the shed, had given them the gas can containing
gasoline to use, and had telephoned him twice the evening of the fire.
The state presented evidence that the DNA recovered from the saliva
on the envelopes left on G’s lawn had come from the petitioner. The
state also presented the testimony of an expert, a state chemist, that
the accelerant used to start the fire was not gasoline, but a compound
often found in various substances used in the car repair business.
Defense counsel, who had not hired an arson investigation expert,
learned for the first time at trial, through the state’s expert, that the
accelerant was not gasoline, after he had cross-examined G. Defense
counsel, because he had not known that the accelerant was a compound
that G may have used to repair autos in his shed, had not questioned
G regarding his access to such an accelerant to start the fire. The habeas
court denied the petition for a writ of habeas corpus. On the petitioner’s
certified appeal to this court, held that the habeas court properly denied
the petitioner’s petition for a writ of habeas corpus on the basis of his
failure to establish that his counsel’s failure to hire or to consult with
a defense expert in arson investigation before trial prejudiced his
defense; the petitioner failed to prove that, if counsel had known before
trial that an organic compound other than gasoline, particularly a com-
pound used in auto repair, had been used to set fire to G’s shed, his cross-
examination of G would have elicited sufficient evidence to establish
a reasonable probability that the result of the criminal trial would have
been different, the petitioner having failed to call G to testify at the
habeas trial to establish what G would or could have testified to on
cross-examination at the criminal trial had he been questioned about
the compound, and the state’s other evidence establishing the petition-
er’s guilt as the person who planned and recruited others to commit the
intentional burning of G’s shed was overwhelming, including eyewitness
testimony from G and J and DNA evidence connecting J to the scene
on the night of the fire and the petitioner to the envelopes left on G’s lawn.
Argued March 4—officially released May 12, 2020
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, Hon. Edward J. Mullar-
key, judge trial referee; judgment denying the petition;
thereafter, the court granted the petition for certifica-
tion to appeal, and the petitioner appealed to this
court. Affirmed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Anne F. Mahoney, state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. In this certified appeal from the denial
of his petition for a writ of habeas corpus, the petitioner,
Jorge Benitez, contends that the habeas court erred in
rejecting his claim that he was deprived of the effective
assistance of counsel in his underlying criminal trial.
In that trial, the jury found the petitioner guilty of five
criminal offenses in connection with his alleged role in
planning and recruiting others to carry out the inten-
tional burning of a shed owned by the complainant,
Joseph Gionet, in Thompson. Those offenses included
arson in the first degree as an accessory in violation of
General Statutes §§ 53a-8 and 53a-111 (a) (4), conspir-
acy to commit arson in the second degree in violation
of General Statutes §§ 53a-48 (a) and 53a-112 (a) (1)
(A), criminal mischief in the first degree as an accessory
in violation of General Statutes §§ 53a-8 and 53a-115
(a) (1), conspiracy to commit criminal mischief in the
first degree in violation of §§ 53a-48 (a) and 53a-115 (a)
(1), and inciting injury to persons in violation of General
Statutes § 53a-179a. After the jury returned its guilty
verdict, the trial court separately found the petitioner
guilty, as alleged in a part B information, of being a
persistent felony offender under General Statutes (Rev.
to 2005) § 53a-40 (f). Thereafter, the trial court sen-
tenced the petitioner to a total effective sentence of
fifteen years of incarceration, execution suspended
after thirteen years, followed by five years of probation.
This court subsequently affirmed the petitioner’s con-
viction on direct appeal. See State v. Benitez, 122 Conn.
App. 608, 610, 998 A.2d 844 (2010).
Following his direct appeal, the petitioner com-
menced this habeas corpus action. On January 24, 2018,
after twice amending his original habeas corpus peti-
tion, the petitioner was brought to trial before the
habeas court on his second amended habeas corpus
petition. After five days of evidence and posttrial brief-
ing, the habeas court issued a memorandum of decision
in which it denied the petition. The habeas court ruled
that the petitioner had failed to prove either essential
element of his claim of ineffective assistance of counsel
under controlling state and federal case law enforcing
the right to counsel provided by the sixth and fourteenth
amendments. The habeas court subsequently granted
the petitioner’s petition for certification to appeal from
its decision. This appeal followed.
A criminal defendant has a constitutional right to the
effective assistance of counsel at his criminal trial. U.S.
Const., amend. VI. This right is made applicable to the
states through the due process clause of the fourteenth
amendment. U.S. Const., amend. XIV. ‘‘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 peti-
tioner to show (1) that counsel’s performance was defi-
cient 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.’’ (Internal quotation
marks omitted.) Carneiro v. Commissioner of Correc-
tion, 109 Conn. App. 513, 515, 952 A.2d 80, cert. denied,
289 Conn. 936, 958 A.2d 1244 (2008). ‘‘To satisfy the
performance prong . . . the petitioner must demon-
strate that his attorney’s representation was not reason-
ably competent or within the range of competence dis-
played by lawyers with ordinary skill and training in
the criminal law. . . . 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.’’
(Internal quotation marks omitted.) Fernandez v. Com-
missioner of Correction, 291 Conn. 830, 835, 970 A.2d
721 (2009). ‘‘It is well settled that [a] reviewing court can
find against a petitioner on either ground, whichever
is easier.’’ (Emphasis omitted; internal quotation marks
omitted.) Small v. Commissioner of Correction, 286
Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom.
Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed.
2d 336 (2008).
In this appeal, the petitioner claims error as to the
habeas court’s rulings rejecting both prongs of his inef-
fective assistance of counsel claim. After carefully
reviewing the record before us, we conclude that the
habeas court’s denial of the petitioner’s claim of ineffec-
tive assistance of counsel must be affirmed because
the petitioner failed to establish the prejudice prong of
that claim by proving that his counsel’s failure to hire
or consult with a defense expert in arson investigation
before trial prejudiced his defense.
The petitioner’s claim must be evaluated in light of
the evidence presented at his trial. In that trial, the state
claimed and sought to prove that the petitioner had
hired two brothers from Massachusetts, Jorge Delgado
and Francisco ‘‘Frankie’’ Delgado, to burn down the
complainant’s shed. He did so, it was claimed, to get
back at the complainant for removing two cars from
the petitioner’s used car lot, one of which the complain-
ant had left with the petitioner to be sold on consign-
ment. After the two men argued about what the com-
plainant had done, the complainant received a
threatening phone call. Later that same day, he found
two envelopes stuffed with ‘‘funny money’’ on the lawn
outside of his house, which the petitioner had pre-
viously indicated to the complainant is a method that
he uses to notify people who do not comply with his
wishes; he then enlists friends from Massachusetts to
‘‘[take] care of his problems.’’ The envelopes were
marked with the model years of the two cars the com-
plainant had removed from the petitioner’s lot. Put on
guard by the petitioner’s threat, and keeping an eye out
for trouble, the complainant began to notice that, on
several occasions, the petitioner drove by his house
in different cars. Fearing that the petitioner might be
planning to cause trouble at or near his house, and
fearing for the safety of his wife, who came home from
work late at night, the complainant began to wait out-
side the house in the dark, sometimes armed with a
gun, as the hour of his wife’s return approached. On
one such night, he heard footsteps of persons coming
onto his property, and then saw two men near his shed
before a large fireball burst above them. Chasing the
men into the street, with flames shooting high in the
air above them, the complainant fired several shots in
their direction, striking one of them in the arm. That
man, Jorge Delgado, after setting the fire, fled to
Worcester, Massachusetts, to receive medical treatment
for his wound in an out of state hospital. Jorge Delgado
testified at the petitioner’s criminal trial that the peti-
tioner had hired him and his brother Frankie to burn
down the shed, had given them a gas can containing
gasoline to do the job, and had spoken with him by
telephone before and after setting the fire, when he
called him initially to ensure that he could establish an
alibi and, later, to confirm for him that the job was done.
The state also presented telephone records confirming
that the two phone calls described by Jorge Delgado,
in fact, had been made, DNA evidence from blood recov-
ered outside the complainant’s house that showed that
Jorge Delgado had been injured in that location on that
evening, and hospital records that showed that Jorge
Delgado had been treated for a gunshot wound at a
Worcester hospital on the evening of the fire. In addi-
tion, the state presented DNA evidence, which proved
that the saliva used to seal the two envelopes of ‘‘funny
money’’ left on the complainant’s lawn before the fire
had come from the petitioner. Finally, as previously
noted, a state expert chemist testified that the acceler-
ant used to start the fire was not gasoline, but a medium
boiling range petroleum distillate, a substance used in
the car repair business, in paint thinner and degreasers.
The evidence at the habeas trial showed that defense
counsel neither hired nor consulted with an expert in
arson investigation before the start of trial. As a result,
he did not learn that the fire had not been started with
gasoline until the state’s expert testified.
The petitioner bases his claim of prejudice on coun-
sel’s alleged deficient performance in declining to hire
or to consult with an expert in arson investigation
before trial, which caused him not to learn the type
of accelerant used to start the fire before he cross-
examined the complainant, who testified before the
state’s expert chemist. According to the petitioner,
counsel’s resulting lack of knowledge prevented him
from mounting an effective cross-examination of the
complainant on the petitioner’s alternative theory that
the complainant, not the Delgado brothers, had started
the fire using a medium boiling range petroleum distil-
late of the sort that the complainant may have used in
his auto repair business and stored in his shed. The
lack of such information, claims the petitioner, compro-
mised counsel’s ability to cross-examine the complain-
ant concerning his own access to and likely use of such
an accelerant to set the fire.
After thoroughly reviewing the entire record before
the habeas court, we conclude that its ruling must be
affirmed because the petitioner failed to establish the
prejudice prong of his claim.
On this score, we note initially that, for the petition-
er’s claim of prejudice to be successful, he had to prove
that, if counsel had known before trial that an organic
compound other than gasoline, particularly a medium
boiling point petroleum distillate, had been used to set
fire to the complainant’s shed, his cross-examination
of the complainant would have elicited sufficient evi-
dence to establish a reasonable probability that the
result of his criminal trial would have been different.
There are two reasons why the petitioner failed to prove
his claim of prejudice in this case.
First, the petitioner failed to call the complainant to
testify at the habeas trial, or otherwise to establish what
the complainant would or could have testified to on
cross-examination, had he been questioned about his
access to and possible use of such medium boiling range
petroleum distillates to set fire to his own shed. It is
axiomatic that a habeas petitioner who claims prejudice
based on counsel’s alleged failure to present helpful
evidence from a particular witness, must call that wit-
ness to testify before the habeas court or otherwise
prove what the witness would or could have stated had
he been questioned at trial, as the petitioner claims he
should have been. See, e.g., Taft v. Commissioner of
Correction, 159 Conn. App. 537, 554, 124 A.3d 1 (peti-
tioner failed to prove prejudice when he ‘‘did not offer
evidence regarding how [the witnesses] would have
testified if they had been cross-examined [differently]’’),
cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). In
this case, no such showing was even attempted, much
less made.
Second, apart from the petitioner’s failure to establish
what the complainant would have testified to had he
been cross-examined as the petitioner suggested, the
state’s other evidence establishing the petitioner’s guilt
as the person who planned and recruited others to
commit the intentional burning of the complainant’s
shed, as summarized above, was overwhelming. Two
independent eyewitnesses testified to what they had
seen and done on the evening of the incident. One, the
complainant, testified to his long running dispute with
the petitioner concerning their dealings about the repair
and sale of cars, including their recent dispute about
his removal of two cars from the petitioner’s used car
lot, one of which had been left to be sold on consign-
ment. The petitioner reportedly had an angry, threaten-
ing reaction to the cars’ removal, and the threat had
involved unspecified payback to the complainant by
the petitioner’s friends from Massachusetts. The com-
plainant had then seen the petitioner drive by his house
on several occasions, and had found two envelopes on
his lawn stuffed with ‘‘funny money’’ and bearing the
model years of the two cars he had removed from the
petitioner’s lot. On notice about the petitioner’s plans
for retribution, he kept watch outside of his house late
at night when his wife was due to return home from
work. It was in keeping such a lookout that he spotted
two men near his shed when the shed went up in flames;
he shot one of them with his rifle as he chased them
off. The second eyewitness, Jorge Delgado, confirmed
the complainant’s testimony by testifying that he was
shot and injured on the evening of the fire when he and
his brother Frankie, two residents of Massachusetts
who had been hired by the petitioner for that purpose,
went to the complainant’s house with a gas can and
burned down his shed before shots rang out and he
was struck in the arm by a bullet. The evidence con-
firmed that Jorge Delgado’s blood had been left at the
scene of the fire where the complainant had shot him,
he had been treated for his injuries on that evening in
a Worcester hospital, and he had twice telephoned the
petitioner on that evening, once before and once after
setting the fire. Finally, the evidence showed that the
threatening envelopes filled with ‘‘funny money’’ had
been sealed shut by the petitioner. In light of this wealth
of highly damning evidence, there is no reasonable
probability that, if his trial counsel had conducted his
defense as the petitioner claims he should have, the
result of the petitioner’s criminal trial would have
been different.
Accordingly, we affirm the denial of the petitioner’s
habeas corpus petition on the basis of his failure to
establish the prejudice prong of his ineffective assis-
tance of counsel claim.
The judgment is affirmed.