Opinion
No. CV05 4000511 S
September 2, 2009
MEMORANDUM OF DECISION
The petitioner, Raul Larracuente, filed a petition for a writ of habeas corpus on June 23, 2005, challenging the legality of his detention. He was charged in a criminal case bearing Docket No. CR 97 0134540 with murder in violation of General Statutes § 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(5), and possession of a pistol without a permit in violation of General Statutes § 29-35. After a jury trial, the petitioner was acquitted of murder and attempted murder but found guilty of assault in the first degree and carrying a pistol without a permit. On July 30, 1999, the court, Comerford, J., sentenced the petitioner to eighteen years incarceration for assault and two years incarceration for carrying a pistol without a permit, to be served consecutively, for a total effective sentence of twenty years incarceration. The petitioner was represented at trial by attorney Alex Schwartz.
The petitioner appealed his convictions, which were upheld without discussion in a per curiam decision by the Appellate Court. See State v. Larracuente, 68 Conn.App. 906, 793 A.2d 299 (2002). Attorney Michael D'Onofrio represented the petitioner on appeal, and raised the sole issue that the state's attorney, John Smriga, engaged in misconduct that denied the petitioner his right to due process.
The present matter came before this court for a trial on the merits on October 16, 2008, January 13, 2009 and April 20, 2009. The petitioner submitted exhibits including transcripts from his criminal trial, briefs from his direct appeal and police records of the victims in the underlying case. Testifying were the petitioner, his brother, Luardi Larracuente, former neighbors Irma Flores, Sonia Coriano, Hilda Sanchez and Carolyn Sanchez, fellow inmate Victor Colorado, attorneys Schwartz and D'Onofrio, and attorney Laurie Welch-Rubin, an expert in the field of appellate criminal defense.
CT Page 14804
FACTS
The court finds the following facts. At all times relevant to this petition, the petitioner lived with his father, mother and brother Luardi in an apartment on Pembroke Avenue in Bridgeport. Luardi Larracuente had been involved in a relationship with Hilda Sanchez, who at the time occupied an apartment with her sister, Carolyn Sanchez, in a building adjacent to the petitioner's. Hilda Sanchez had a child by Luardi Larracuente. Prior to this, however, she had been involved in a relationship with Joseph Rivera, a/k/a Tyson, and had had a child with him prior to his incarceration on weapon and assault charges. When Joseph Rivera was released from prison, he confronted Luardi about his relationship with Hilda Sanchez. Several weeks prior to the petitioner's commission of the crimes, Joseph Rivera had shown Luardi a gun and threatened him, telling him that he could not shoot him then because there were too many witnesses. Luardi told his parents and brother about the incident, which prompted the petitioner to buy a gun.On August 10, 1997, the petitioner and Luardi went to a neighboring apartment to talk with Joseph Rivera and his brother, Pedro Rivera, and try to diffuse or work out the issues between Joseph Rivera and Luardi. The petitioner went into the apartment and asked to talk with Joseph Rivera outside. Joseph Rivera changed clothes upstairs, then exited the apartment with his brother. A scuffle ensued between Joseph Rivera and Luardi, which became an all-out melee also involving Pedro, the petitioner, and the petitioner's father, who was struck in the head by Pedro. At one point, one of the Rivera brothers shouted "go get a strap" referring to a gun.
After the fight broke up, the petitioner and his parents returned home while Luardi went to a friend's house. The Rivera brothers went to Carolyn Sanchez's apartment, where they cleaned their wounds, Pedro took a nap and Joseph Rivera took a shower. They then met up with their friend "Morgie" and approached the Larracuente's apartment. Raul had retrieved his gun and stood on the steps with his girlfriend, Maria Soto, and his parents. Soto's daughter, Jocelyn Vasquez, had seen Joseph Rivera putting a gun into his waistband and informed her mother, who informed the petitioner of this. The parties exchanged words and the argument became heated, with Morgie the most antagonistically vocal and Joseph Rivera remaining relatively quiet. Ultimately, Pedro said "you and your brother are going to rest in peace" and the petitioner saw Joseph Rivera reaching into his waistband, at which point the petitioner pulled out his gun and started firing. Joseph Rivera was struck three times, in the back, arm and wrist, and Pedro struck once. Joseph Rivera was taken to the hospital, eventually expiring from his gunshot wounds approximately a week later. The petitioner fled to Florida, but returned after several months and turned himself in to the police.
Attorney Schwartz's stated strategy was that the petitioner had acted in self-defense. He attempted to demonstrate that the petitioner was afraid of Joseph Rivera and that Joseph Rivera had a reputation for violence, particularly gun violence. He also solicited testimony that Soto had informed the petitioner that Joseph Rivera was armed, and generally tried to impeach the credibility of state's witnesses, especially Pedro Rivera, by eliciting contradictions in their accounts of the events at issue. He recalled discussing the jury instructions in chambers, and did not feel that the judge's instructions were objectionable or that the verdict was inconsistent.
Attorney D'Onofrio likewise did not feel that the instructions were improper or that the verdict was inconsistent, as there was no way of knowing whether the jury had acquitted the petitioner of murder due to a finding of self-defense or simply that the petitioner lacked the specific intent to commit murder. He also testified that the petitioner's father had filed a grievance against him some eighteen months after the Appellate Court upheld the petitioner's convictions, on an unrelated civil matter, and that it could not have affected his representation of the petitioner.
Various eyewitnesses to the shooting testified at the habeas trial, in large part consistently though with some discrepancies; the vast majority of this evidence, however, was presented in some form at the petitioner's criminal trial.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the [s]ixth [a]mendment . . . 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 . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct 481, 172 L.Ed.2d 336 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ."
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the 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 . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
The respondent, in the return to the amended petition, raised the special defense of procedural default to the claims of prosecutorial misconduct and the court's jury instructions. Because the petitioner is attacking trial and appellate counsel's effectiveness rather than raising a claim that the court's actions directly violated his rights, his claims do not admit of procedural default: "[A]n ineffective assistance of counsel claim is not subject to the usual rule requiring a direct appeal and is properly raised by way of a subsequent habeas corpus petition." (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 96 Conn.App. 251, 255 n. 3, 900 A.2d 54, cert. denied, 280 Conn. 908, 907 A.2d 89 (2006).
A. Ineffective assistance of trial counsel
The petitioner alleges fifteen distinct grounds for his claim that attorney Schwartz was ineffective, some of which were supported by little or no evidence or argument, and some of which are duplicative. To the extent they were not effectively prosecuted, the claims are deemed abandoned.1 See Wooten v. Commissioner of Correction, 104 Conn.App. 793, CT Page 14807 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008). The court will address on their merits only those claims on which evidence and/or argument was presented.
The petitioner first claims attorney Schwartz was ineffective in failing to conduct an adequate pretrial investigation, which would have revealed the terms of Joseph Rivera's release from custody and parole, evidence of witness tampering by the Rivera family, the criminal history of Morgan Crossley a/k/a "Morgie," gang affiliation of either Joseph or Pedro Rivera, and other eyewitnesses to the shooting or who were in the company of the Riveras just before or after the shooting. No evidence was submitted on the bulk of these allegations; with respect to the failure to investigate potential witnesses, the court's conclusion is subsumed by the following discussion on the claim that attorney Schwartz failed to call certain witnesses.
The petitioner's next claim is that attorney Schwartz was ineffective in failing to present available evidence in support of the petitioner's defenses and mitigating factors, including certain witnesses' testimony. At the habeas trial, the petitioner presented testimony from several witnesses who were not called at the criminal trial: Irma Flores testified that the shooting occurred shortly after the fistfight and that she saw Pedro Rivera with a gun tucked into his waistband; he rested his hand on it but did not draw it. Sonia Coriano testified that she was in Carolyn Sanchez's apartment when the Rivera brothers came up after the fistfight and spent time with the children there; she did not get a sense that something bad was going to happen, though they were angry when they came into the apartment. Hilda Sanchez was also in the apartment at that time, and that the brothers were "upset but fine." Victor Colorado, Irma Flores' son and the father of Carolyn Sanchez's daughter, spoke to both Flores and Carolyn Sanchez while he was incarcerated on an unrelated murder charge; they told him that after the fistfight, the Rivera brothers went to the Larracuente's house, and that Pedro had his hand on the handle of a gun and kept threatening Mr. Larracuente, and that he had told Flores and Sanchez to not get involved and to leave it alone.
Nothing material can be gleaned from this testimony beyond that which was already elicited at the criminal trial in some form or other. The only potentially helpful evidence came from Irma Flores' testimony that she saw Pedro Rivera with his hand on the handle of a gun and was threatening Mr. Larracuente. Victor Colorado also testified that he learned from conversations with Flores and Carolyn Sanchez that Pedro had a gun, which tended to impeach Sanchez's testimony that she did not see Pedro with a gun. This testimony, however, was somewhat equivocal and the court did not find it particularly credible; Flores's testimony was confused and unclear and Colorado is a convicted felon who did not witness the shooting and had only secondhand information regarding it. While the petitioner testified he told his attorney to contact "Irma Colorado" and Victor Colorado, attorney Schwartz testified that he did not remember the name Irma Flores and, though he recognized the name Victor Colorado, could not remember whether he contacted him. He did, however, hire an investigator and spoke with everyone he knew to be present at the time of the shooting. There is, simply, scant evidence indicating that attorney Schwartz rendered deficient performance in investigating when the bulk of the information the petitioner claims would have been uncovered was already known and presented at trial, and the additional evidence was not particularly credible or helpful. Moreover, even if deficient performance were to be presumed, the petitioner has failed to demonstrate prejudice. Assuming arguendo that the testimony was believed in full, it would not effectively exculpate the petitioner; it was undisputed that neither brother had pulled a gun before the petitioner started shooting and that Pedro was running away when he was shot. Therefore, this claim must fail.
The petitioner next contends that attorney Schwartz was ineffective in failing to move for a mistrial or dismissal on the grounds of prosecutorial misconduct. Prosecutorial misconduct was the sole issue raised on direct appeal, and the Appellate Court's decision affirming the conviction effectively bars further review of this issue.3 "[C]ollateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined." (Internal quotation marks omitted.) Dontigney v. Commissioner of Correction, 87 Conn.App. 681, 685, 867 A.2d 93 (2005). If there was no misconduct, attorney Schwartz cannot have been ineffective for failing to move for a mistrial on this basis. This claim must fail.
The petitioner's next claim is that attorney Schwartz was ineffective in failing to object to the court's instruction on self-defense in response to a jury inquiry. The record reveals that, in response to a note from the jury asking "If we find that self defense applies to . . . count one, does self-defense automatically or mandatorily apply to . . . count two, and . . . count three?" the court responded, "[s]o, simply said, if self-defense applies to count one, does it apply to counts two and three. No is the answer to that question. No. That's the answer to your question. Okay. I'm going to send you back."
The petitioner contends that this misled the jury into believing that they were precluded from finding that the petitioner had acted in self-defense with respect to counts two and three. "Ordinarily, [w]here . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict . . . In evaluating the particular charges at issue, [the reviewing court] must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [the reviewing court] will not view [the instructions] as improper." (Internal quotation marks omitted.) State v. Brewer, 283 Conn. 352, 359, 927 A.2d 825 (2007).
While the court's instruction may have run a slight risk of misleading the jurors, it is less harmful in context than it would be in a vacuum. The jury's question specifically asked whether self-defense would "mandatorily or automatically" apply to the second and third charges if it applied to the first, and the court repeated this qualifying language in prefacing its answer, making it much less likely to have confused or misled the jurors. Moreover, the court's original charge informed the jurors that self-defense "is a complete defense if you find it established as to any of these charges" (emphasis added), indicating that the defense was available on all the charges the petitioner faced. It is undoubtedly true that "a frankly expressed confusion of a jury, emphasized by a particular question involving a crucial element in the case, requires further instructions which fully and adequately address the confusion, notwithstanding a proper prior charge." (Emphasis added.) State v. Fletcher, 10 Conn.App. 697, 701-02, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988) (trial court had no discretion to refuse to issue supplemental instruction when requested by jury). Nevertheless, in the present case, unlike in Fletcher, the court did address the jury's query, and did so sufficiently clearly to avoid confusion or misleading the jury. Thus, attorney Schwartz was not ineffective for failing to object to the court's response to the jury inquiry, and there was no prejudice to the petitioner from his failure to do so even if deficient performance were to be presumed.
The petitioner's next claim is that attorney Schwartz was ineffective in failing to move for a directed verdict on the assault charge. The petitioner argues that "in light of the jury's findings that the petitioner did not murder Joseph Rivera and did not attempt to murder Pedro it is reasonable to believe that the jury believed that he had acted in self-defense." While this is not an inaccurate statement, it is also not the only reasonable conclusion to draw from the verdict; the jury could also have found that the petitioner lacked the specific intent for murder or attempted murder, or have found that the petitioner acted in self-defense with respect to one victim but not the other. In State v. Kuranko, 71 Conn.App. 703, 803 A.2d 383 (2002), the court upheld the defendant's conviction on both assault in the third degree and reckless endangerment in the first degree, reasoning that the defendant's mental state could have changed over time with respect to a sequence of multiple attacks on the same victim: "It is not inconsistent . . . to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results. (Internal quotation marks omitted.) State v. Morascini, 62 Conn.App. 758, 762, 772 A.2d 703, cert. denied, 256 Conn. 921, 774 A.2d 141 (2001)." State v. Kuranko, supra, 714. "Where . . . there are multiple criminal acts, [a] jury reasonably could have found that the defendant committed one act or group of acts with one mental state and a second act or group of acts with a different mental state . . . Indeed, there is a compelling case for finding that the defendant's actions constituted different crimes that occurred on an escalating continuum." (Citations omitted; internal quotation marks omitted.) Id.
Likewise, the petitioner's assertion that "it is reasonable to infer that the jury also found that the petitioner did not believe he could retreat in absolute safety," is also not the only inference one could make based on the petitioner's acquittal of murder and attempted murder, and cannot be satisfactorily determined by the verdict alone. In the absence of any compelling evidence to the contrary, "[i]t is axiomatic that the jury is presumed to understand and to have followed the court's instructions." State v. Wright, 111 Conn.App. 389, 395, 958 A.2d 1249 (2008). There is no reason to suspect the jury found self-defense for the charge of attempted murder rather than simply a lack of intent; thus, the plaintiff's premises are flawed, rendering his conclusions logically deficient and unpersuasive to this court. Therefore, he has failed to demonstrate that attorney Schwartz performed deficiently or that he suffered prejudice as a result of Schwartz's failure to move for a directed verdict.
There is some indication the jury might have found the petitioner not guilty of the murder of Joseph Rivera by reason of self defense; when reading the verdict, the following colloquy took place:
CLERK: is he guilty or not guilty of the crime of murder with which he stands charged?
FOREPERSON]: not guilty.
CLERK Not guilty what say-
[FOREPERSON]: That he used self-defense, sorry. Do you want to-
CLERK: That's all right.
Regardless of whether this can be taken as an indication that the jury found self-defense on this count, however, the attempted murder and assault charges related to a different act, that of shooting Pedro Rivera, and a finding of self-defense with respect to Joseph Rivera would not indicate anything with respect to the verdict on those charges.
The remaining allegations, as noted above, were not supported by any meaningful evidence. The petitioner, therefore, has failed to meet his burden of demonstrating that he received ineffective assistance from trial counsel, and count one of his petition is denied.
CT Page 14811
B. Ineffective assistance of appellate counsel
The petitioner next challenges the representation he received on appeal by attorney D'Onofrio in that he failed to raise the issues of inconsistent verdicts, erroneous jury instructions, to seek articulation of and appeal the Appellate Court's per curiam decision, and to seek to withdraw based on a grievance filed against him by the petitioner's father.The petitioner first argues that his acquittals of not guilty to murder and attempted murder are inconsistent with the conviction for assault in the first degree because the jury found him not guilty by reason of justification or self-defense. As alluded to above, however, there was no inconsistency, legal or factual, to be found in the jury's verdict. Even if the jury had found the petitioner not guilty of the murder of Joseph Rivera by way of self-defense as to the first count, it could have found that the petitioner had a different mental state with respect to the second and third counts of attempted murder and assault in the first degree because they related to a different act: the shooting of Pedro Rivera. The jury could have reasonably found that the petitioner lacked the specific intent to murder Pedro Rivera, but nevertheless found that he intended to cause injury to him and did so by discharging a firearm. See General Statutes § 53a-59(a). Moreover, even verdicts that are factually inconsistent, which is the most that might arguably be said of the petitioner's, are unchallengeable on appeal: "[I]n criminal trials before a jury, [t]he general rule to which we subscribe is that factual [c]onsistency in the verdict is not necessary. Each count in an indictment is regarded as if it [were] a separate indictment . . . [A] factually inconsistent verdict will not be overturned on appeal. On several occasions, this court has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise . . . [I]nconsistency of the verdicts is immaterial . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." (Citations omitted; internal quotation marks omitted.) State v. Goriss, 108 Conn.App. 264, 267-68, 947 A.2d 1041, cert. denied, 289 Conn. 904, 957 A.2d 873 (2008). Thus, the petitioner has failed to meet his burden of demonstrating deficient performance or resulting prejudice on this ground.
The petitioner's next claim is that attorney D'Onofrio was ineffective in failing to raise the issue of the court's erroneous jury instruction on self-defense. To the contrary; as discussed above, there was no deficiency in attorney Schwartz's failure to challenge the court's instruction in response to the jury inquiry regarding self-defense because the instruction was not in error. "It is well established that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law." (Citations omitted.) State v. Flowers, 278 Conn. 533, 549, 898 A.2d 789 (2006). "[J]ury instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury." State v. Tok, 107 Conn.App. 241, 945 A.2d 558, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).
The court's instruction regarding the automatic application of self-defense in the present case was, at worst, an incomplete statement of the law; while it may not have been "exhaustive" or "perfect," it was certainly not incorrect and was sufficient for the jury's guidance when viewed in context. There was little chance that the jury would get the impression, after specifically asking "does self defense automatically or mandatorily apply to . . . count two, and . . . count three," that they were prohibited from finding self-defense applied to counts two and/or three if they found self-defense applied to count one. Therefore, there was no deficiency in failing to raise this claim, and no prejudice even if deficient performance were presumed.
The petitioner next argues that attorney D'Onofrio was ineffective in failing to seek an articulation of the Appellate Court's decision to permit the petitioner to appeal to the Supreme Court. He has presented no evidence or argument to suggest that certification would be granted, however, let alone that the appeal would be successful, and thus has not demonstrated that he was prejudiced even if deficient performance were to be presumed. This claim must fail.
The final claim raised by the petitioner is that attorney D'Onofrio was ineffective in failing to withdraw from representation of the petitioner in light of a grievance filed by the petitioner's father against D'Onofrio. The petitioner does not specify exactly why this presented reason for D'Onofrio's withdrawal. More importantly, the only evidence presented at trial was D'Onofrio's credible and uncontradicted testimony that petitioner's father filed a grievance against him approximately eighteen months after the Appellate Court's decision was issued, well after his representation of the petitioner had ceased and based on a totally unrelated civil matter in which he had represented petitioner's father. If the petitioner's intent was to suggest that a conflict of interest existed, the court cannot find a conflict based on an event that occurred some time subsequent to the legal representation at issue. This claim, therefore, must fail.
CONCLUSION
Having failed to demonstrate that he received ineffective assistance of trial or appellate counsel, the petitioner's petition for a writ of habeas corpus is denied. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.
1 This includes the petitioner's claims regarding the victim's mother's outburst in court, the failure to review the transcript of the probable cause hearing or request a probable cause hearing, and failure to explain plea offers to the petitioner. The petitioner has also not specified exactly how attorney Schwartz's cross-examination of witnesses was deficient. A review of the transcript reveals thorough and effective cross-examination of state witnesses, with able attempts to impeach and/or contradict their testimony and to paint the victims in a poor light as aggressive and violent. As to the claim regarding Joseph Rivera's conditions of parole, no direct evidence established this and, in any event, the court does not see how it was relevant. Finally, with respect to the claims that attorney Schwartz failed to advise him properly before the trial with respect to the maximum penalties he faced on the crimes charged, the strengths and weaknesses of the state's case, or any available plea offers, little to no evidence was presented; to the contrary, attorney Schwartz testified that he did discuss the elements of the crimes charged and the state's case against him, and, if there were any plea offers, he would have conveyed those to his client.
Although the court issued a per curiam decision with no discussion, the appellate briefs submitted by the petitioner show that he specifically raised prosecutorial misconduct that violated the petitioner's due process rights.