JULIO RODRIGUEZ v. COMMISSIONER OF CORRECTION
(AC 35346)
Connecticut Appellate Court
June 24, 2014
Gruendel, Sheldon and Flynn, Js.
Argued April 14—officially released June 24, 2014
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the
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Peter G. Billings, assigned counsel, for the appellant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Robin Lipsky, former senior assistant state’s attorney, for the appellee (respondent).
GRUENDEL, J. The petitioner, Julio Rodriguez, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court improperly concluded that he had not established that his trial counsel rendered ineffective assistance. We affirm the judgment of the habeas court.
This case involves a gang related murder. In early February, 1996, members of the Latin Kings and the Neta gangs met at a home on River Street in Waterbury. The petitioner was a member of the Latin Kings and was present at that meeting, as were Brandon Rivera and Julio Lugo. Both gangs were upset with Anthony DeJesus, a former member of the Latin Kings who recently began selling heroin ‘‘on turf’’ purportedly belonging to the Neta gang. At that meeting, both gangs agreed that DeJesus should be murdered and approved an ‘‘order’’ to that effect.
As recounted by this court in the petitioner’s direct appeal, ‘‘[o]n February 15, 1996, [DeJesus] was shot to death during the course of a robbery. Approximately two weeks later, Maryanne Terpack, the [petitioner’s] pregnant girlfriend, gave Waterbury police a statement that implicated [him] in the killing.1 After giving that statement to the police, Terpack was incarcerated at York Correctional Institution in Niantic as a result of an outstanding warrant. On March 8, 1996, in the late morning, the [petitioner] was located in Bristol by the police. [He] voluntarily agreed to return to the Waterbury police station in the company of Sergeant Michael Ricci and Detective Gary Pelosi. When they arrived, the [petitioner] was advised of his constitutional rights orally and in writing. The [petitioner] also signed an advisement of rights card after demonstrating his proficiency in the English language. The [petitioner] was then questioned by Ricci in an interview room. During the questioning, the [petitioner] admitted his involvement in the murder. At approximately 2 p.m., Ricci started taking the [petitioner’s] written statement. The [petitioner] signed the completed statement at approximately 5:15 p.m.’’ State v. Rodriguez, 56 Conn. App. 117, 118–19, 741 A.2d 326 (1999), cert. denied, 252 Conn. 926, 746 A.2d 791 (2000).
In his written confession, the petitioner stated in relevant part: ‘‘I, Julio Rodriguez, do give this statement voluntarily, having been advised of my rights and waiving these rights. On Thursday, February 15, 1996 . . . I hooked up with Brandon Rivera and Julio Lugo and we chilled on Mill Street for a while until a Waterbury kid, who I think is a Neta gang member, showed up. The Waterbury kid was driving a black Caddy or Oldsmobile. Julio Lugo [and] Brandon Rivera told me to get in my car and let’s go do this. I knew that they wanted to go
The petitioner thereafter was charged with aiding and abetting murder in violation of
Following a trial, the jury found the petitioner guilty of aiding and abetting murder; it acquitted him on the felony murder and attempted robbery counts. The court rendered judgment accordingly, sentencing the petitioner to a total effective term of fifty years incarceration. From that judgment, the petitioner directly appealed to this court, which affirmed the judgment of conviction. State v. Rodriguez, supra, 56 Conn. App. 122.
In this appeal, the petitioner challenges the propriety of the court’s determination that Moscowitz did not render ineffective assistance in failing to investigate his alibi defense.3 During the habeas trial, the petitioner testified that he asked Moscowitz to call Jorge Sierra, Jorge Galante, and Sully Lugo to testify at his criminal trial in support of his contention that he was at Saint Mary’s Hospital at the time of the shooting. He now claims that the failure to do so violated his right to effective assistance of counsel.
‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel’s representation fell below an objective standard of reasonableness . . . and (2) that defense counsel’s deficient performance prejudiced the defense. . . . The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. . . . In determining whether such a showing has been made, judicial scrutiny of counsel’s performance must be highly deferential. . . . The reviewing court must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. . . . The second part requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. . . . The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’’ (Citations omitted; internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn. App. 144, 150–51, 868 A.2d 787,
The petitioner cannot establish the requisite prejudice stemming from Moscowitz’ alleged failure to investigate the alibi defense. Although he claims that Sierra, Galante, and Sully Lugo potentially could have testified on his behalf at his criminal trial, the petitioner did not offer the testimony of any of those individuals at his habeas trial. The petitioner also did not present any evidence as to precisely what testimony those witnesses would have offered had Moscowitz called them to testify at his criminal trial. As a result, he cannot demonstrate, as he must, that those individuals would have substantiated his allegation that he was at the hospital at the time of the shooting. See, e.g., Norton v. Commissioner of Correction, 132 Conn. App. 850, 859, 33 A.3d 819 (petitioner cannot prevail on claim that trial counsel was ineffective for failing to investigate witnesses when ‘‘the petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate how they would have assisted in his case had trial counsel interviewed them’’ and thus ‘‘failed to establish that further investigation of these witnesses would have been helpful to his defense’’), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012); Lambert v. Commissioner of Correction, 100 Conn. App. 325, 327–28, 918 A.2d 281 (prejudice not established where petitioner failed to call alibi witness at habeas trial or offer evidence as to what [witness] would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner of Correction, 61 Conn. App. 555, 557, 764 A.2d 1291 (2001) (petitioner cannot establish ineffective assistance of counsel for failure ‘‘to investigate certain witnesses’’ when ‘‘[n]one of those witnesses testified at the habeas trial’’ and no evidence introduced as to ‘‘how that testimony may have supported his claims’’).
Moreover, the petitioner’s alleged alibi defense is contrary to ample evidence in the record before us. The emergency room records from Saint Mary’s Hospital, which were admitted into evidence in his criminal trial, indicate that Terpack was admitted at 10:45 p.m. on February 15, 1996, approximately forty-five minutes after the shooting.4 That evidence is consistent with the petitioner’s statement in his written confession that, following the shooting, ‘‘Junior dropped me and Jorge [Sierra] and [Terpack] off at the hospital and I stayed there until I heard the cops were coming to the hospital.’’
On a more fundamental level, the petitioner’s alibi
The prejudice prong of Strickland requires the petitioner to establish ‘‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’’ (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, supra, 88 Conn. App. 151. That he has not done. We therefore conclude that the court properly denied the amended petition for a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.