Date: 04-12-2016

Case Style: JULIO MORQUECHO v. COMMISSIONER OF CORRECTION

Case Number: AC 37461

Judge: Alexandra Davis DiPentima

Court: Connecticut Appellate Court

Plaintiff's Attorney: Sarah Hanna, Stephen J. Sedensky III, Angela R. Macchiarulo

Defendant's Attorney: Walter C. Bansley IV

Description: The petitioner, Julio Morquecho, appealsfollowingthedenialofhispetitionforcertification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abuseditsdiscretionindenyinghispetitionforcertification to appeal, that the denial of his amended petition for a writ of habeas corpus was improper because his trial counsel provided ineffective assistance in failing to call certain witnesses during his criminal trial, and that he was prejudiced as a result.1 We dismiss the appeal. The habeas court set forth the following factual and procedural history.2 ‘‘Although the petitioner and the victim were never married, they had a long-term relationship that produced two children. They moved together from Ecuador to Danbury. ‘‘In the spring of 2005, the victim became involved romantically with a coworker. When the petitioner found out about the relationship, he became angry and threatened to kill the coworker. The victim became afraid ofthe petitioner andmoved out ofthe apartment where she had been living with him. The petitioner stalkedherandmadenumerousthreats.Afterspending some time in prison for violating a restraining order, the petitioner was released on April 13, 2006. Shortly thereafter,thepetitionermadethreatstokillthevictim. ‘‘Thevictimwasmurderedintheearlymorninghours of April 20, 2006, between 1:40 a.m. and 6 a.m., when she was found by the police outside her home with her throat slit. The victim had left work at 1 a.m. and drove [another coworker] home, dropping the coworker off at 1:40 a.m. ‘‘At the time of the murder, the petitioner lived with family in Danbury only a few minutes from the victim’s home. Police interviewed the petitioner and members of his household as to the petitioner’s whereabouts on the night of the murder. Neither the petitioner nor his family members could confirm that the petitioner was at home asleep from 1:40 to 3 a.m., the time of the murder, because they too were asleep. ‘‘There was no direct evidence connecting the petitionertothemurder.Thestate’scasewasbasedentirely on circumstantial evidence. . . . The petitioner’s first trial resulted in a hung jury. ‘‘[The petitioner’s trial counsel] Attorney [Jeffrey] Hutcoe, was aware that the petitioner claimed that he was home in bed at the time of the murder. He was also aware from the police reports, the arrest warrant and conversations with two of the petitioner’s housemates, that no one saw the petitioner between the hours of11 p.m. on April19, 2006, to 3a.m. on April
20, 2006, because they were asleep. ‘‘Attorney Hutcoe did not pursue an alibi defense becausethedefensecouldnotbesupportedbycredible andreliableeyewitnessevidencethatthepetitionerwas home asleep from 11 p.m. to 3 a.m. and could not have committed the murder.’’ (Footnote omitted.) After his second trial, the petitioner was found guilty ofmurderinviolationofGeneralStatutes§ 53a-54a(a). Thecourtsentencedhimtofifty-fiveyearsofincarceration. On appeal, this court affirmed the conviction. See State v. Morquecho, 138 Conn. App. 841, 842, 54 A.3d 609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012). On October 16, 2014, the petitioner filed a request forleavetofileanamendedpetitionforawritofhabeas corpus alleging, inter alia, ineffective assistance of trial counsel. The request for leave was granted, and on November 4, 2014, the habeas court, Cobb, J., held a trial in which it heard testimony from three witnesses: (1) the petitioner; (2) his brother, Carlos Morquecho (Carlos); and (3) Hutcoe. The petitioner testified that on the evening of April 19, 2006, he was at home with several people who were either family members or housemates. After dinner, at varying hours, certain individuals went to sleep in their respective rooms. The petitioner testified that he went to sleep at approximately 11 p.m. on a mattress located in the living room. One of the petitioner’s housemates also slept in the living room approximately three or four feet away. The petitioner estimated that his housemate fell asleep about twenty minutes after he had gone to bed. The petitioner asserted that he never left the home that evening. Carlosalsotestifiedtowhattranspiredontheevening of April 19, 2006. Carlos testified that he returned from workat6:30p.m.Afterdinner,thepetitionerandCarlos spoke until 10 p.m. when Carlos went to bed. Carlos also testified to going to the bathroom at some point between 1 a.m. and 1:30 a.m. and seeing the petitioner asleep. On cross-examination, the state pressed and attempted to impeach Carlos’ testimony regarding this timeline.3 Nonetheless, Carlos asserted that he did not hear anyone leave the house that night, and that the next time he saw the petitioner was at 6 a.m. Hutcoeexplainedwhyhedidnotcallanalibiwitness and pursue an alibi defense. Hutcoe testified that he believedthatthepetitionerhada‘‘strongcase,’’as‘‘evidenced in the first trial,’’ which resulted in a hung jury. Hutcoe acknowledged that there were four potential alibi witnesses. He, however, did not want to ‘‘pollute [the petitioner’s case] with very weak witnesses who were going to change their stories in front a jury, witnesses who [Hutcoe] knew had told the police . . . we cannot tell you that [the petitioner] was in the house or not.’’ Although Hutcoe interviewed only two of the
fourpotentialwitnesses,heconcludedthat,onthebasis of his investigation coupled with statements made by all the witnesses to the police, ‘‘none of [the witnesses] could say that [the petitioner] was in the house at 1:40 [a.m.] to 2:15 [a.m.] which was the critical juncture in time.’’ Moreover, according to Hutcoe, the time frames provided to the police by the witnesses did not help the petitioner. Consequently, Hutcoe ‘‘was not going to suddenly put someone on the stand that suddenly now is going to change their story to help [the petitioner], have them be cross-examined and beaten up about it, and basically destroy, in [Hutcoe’s] mind, whatever chance [the petitioner] had to win the case.’’4 In short, Hutcoe believed he did not have any reliable and credible witnesses who could testify that the petitioner was at home during the time of the murder. On November 12, 2014, the habeas court issued a memorandumofdecisiondenyingthepetitionforawrit of habeas corpus. Eight days later, the petitioner filed a petition for certification to appeal, which was denied by the habeas court on November 24, 2014. This appeal followed. As an initial matter, we set forth the standard of review relevant to our resolution of this appeal. ‘‘Faced withthehabeascourt’sdenialofcertificationtoappeal, a petitioner’s first burden is to demonstrate that the habeascourt’srulingconstitutedanabuseofdiscretion. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be madeonthebasisoftherecordbeforethehabeascourt and applicable legal principles. . . . ‘‘In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification,wenecessarilymustconsiderthemeritsof thepetitioner’sunderlyingclaimstodeterminewhether the habeas court reasonably determined that the petitioner’sappealwasfrivolous.Inotherwords,wereview the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determiningtheproprietyofthehabeascourt’sdenialof thepetitionforcertification.’’(Internalquotationmarks omitted.) Rosado v. Commissioner of Correction, 129 Conn. App. 368, 371–72, 20 A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011). ‘‘We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel . . . to determine whetherthehabeascourtabused itsdiscretionindenyingthepetitionforcertificationtoappeal.Ourstandard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . . ‘‘In Strickland v. Washington, [466 U.S. 668, 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 requiresthepetitionertoshow(1)thatcounsel’sperformance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner]makesbothshowings,itcannotbesaidthat the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429–30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). ‘‘To satisfy the performance prong [of the Strickland test] . . . 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.’’(Internalquotationmarksomitted.) Boydv. Commissioner of Correction, 130 Conn. App. 291, 294–95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). ‘‘[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’’ (Internal quotation marks omitted.) Orellana v. Commissioner of Correction,135 Conn. App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012). Accordingly, to determine whetherthehabeascourtabused itsdiscretionindenying the petition for certification to appeal, we must consider the merits of the petitioner’s underlying claim that Hutcoe provided ineffective assistance. The petitioner claims that the habeas court erred in concluding that Hutcoe provided effective assistance of counsel despite not calling alibi witnesses. Specifically, he contends that four witnesses could have provided an alibi, namely, that he was at home at the time of the murder. We are not persuaded. ‘‘The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed
his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequateexplanation, failed to callthe witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .’’ (Internal quotation marks omitted.) Robinson v. Commissioner of Correction, 129 Conn. App. 699, 703, 21 A.3d 901, cert. denied, 302 Conn. 921, 28 A.3d 342 (2011). Concluding that Hutcoe’s ‘‘decision not to call these witnesses and pursue an alibi defense was reasonable and constituted sound trial strategy,’’ the habeas court credited the testimony of Hutcoe at the habeas trial. Hutcoe testified that he knew of the petitioner’s claim thathewasathomeatthetimeofthemurder.Notwithstanding the petitioner’s assertion, Hutcoe concluded that no witness could establish that the petitioner was at home during the critical time frame. Moreover, we note that the petitioner’s first criminal trial resulted in a hung jury, lending credence to Hutcoe’s decision not topresent‘‘weakwitnesses’’whocouldtarnishthepetitioner’s defense during his second criminal trial. Thus, as explained by the habeas court, Hutcoe ‘‘did not pursue an alibi defense because the defense could not be supportedbycredibleandreliableeyewitnessevidence that the petitioner was home asleep from 11 p.m. to 3 a.m. and could not have committed the murder.’’ In contrast, the petitioner and his brother testified that he was at home during the time the murder occurred. The habeas court found that the petitioner and his brother’s testimony at the habeas trial were not credible.‘‘Thiscourtdoesnotretrythecaseorevaluate the credibility of witnesses.’’ (Internal quotation marks omitted.) Corbett v. Commissioner of Correction, 133 Conn. App. 310, 317, 34 A.3d 1046 (2012). On the basis of the testimony and evidence presented at the habeas trial, we conclude that the habeas court reasonably concluded that Hutcoe’s decision not to call the witnesses and pursue an alibi defense was reasonable and constituted sound trial strategy. Accordingly, we agree with the habeas court that the petitioner failed to demonstrate that Hutcoe’s performance was deficient, and we further conclude that the petitioner’s claim fails under the first prong of Strickland.5 On the basis of the foregoing, we conclude that the petitioner has not demonstrated that any issue raised with regard to the court’s denial of his petition for a writ of habeas corpus is debatable among jurists of reason, that a court could resolve any such issue in a different manner, or that any question raised deserves encouragementtoproceedfurther.

Outcome: Having failed to satisfy any of these criteria, the petitioner cannot demonstrate that the court abused its discretion in denying the petition for certification to appeal. The appeal is dismissed.

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