September 20, 2016
from Superior Court, judicial district of Tolland, Cobb, J.
B. Rozwaski, assigned counsel, for the appellant
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
Erika L. Brookman, senior assistant state's attorney, for
the appellee (respondent).
Lavine, Mullins and Harper, Js.
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 conclude that the petitioner has failed to brief
adequately the first and third issues and, accordingly, we
decline to review these claims. 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.
following facts found by the habeas court and procedural
history are relevant to our resolution of the
petitioner's claims. 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.
petitioner elected a trial by jury. During deliberations 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 containing 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 petitioner's] family has
been outside the lobby of the courthouse. They also expressed
they haven't bothered anybody.'' After discussing
the jury's note with the parties, 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.
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 sentenced to a total effective sentence of
fifty-four years of incarceration.
February 14, 2014, the petitioner filed the operative
petition for a writ of habeas corpus alleging, as is relevant
here,  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
assistance 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 presented 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 decision.'' 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 petitioner failed to prove that there was a
reasonable probability that a motion for a mistrial would
have been granted. For these reasons, the court denied the
petition on December 5, 2014.
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 concerns 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
testimony 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. We disagree.
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 erroneous, but our
review of whether the facts as found by the habeas court
constituted a violation of the petitioner's
constitutional right to effective assistance of counsel is
plenary.'' (Internal quotation marks omitted.)
Gerald W. v. Commissioner of Correction, 169
Conn.App. 456, 465, A.3d (2016).
well settled that ‘‘[i]n order to establish an
ineffective assistance of counsel claim a petitioner must
meet the two-pronged test enunciated in Strickland v.
Washington, [supra, 466 U.S. 687]. Specifically, the
claim must be supported by evidence establishing that (1)
counsel's representation fell below an objective standard
of reasonableness, and (2) counsel's deficient
performance prejudiced the defense because there was a
reasonable probability that the outcome of the proceedings
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 ineffective assistance