Gerardo Torres v. Warden, State Prison (2010)

COURT DECISION

THE COURT:  Good afternoon.

ATTY. EISENMAN:  Good afternoon.

THE COURT:  All right.   We're here back on the record in the matter of Mr. Gerardo Torres versus the Warden.   And I appreciate counsel's patience.   And as I said yesterday, I want to thank both counsel for an orderly presentation of the case.   And although the case lasted roughly one half day, I know it's a very serious matter to both parties and I gave it the appropriate attention in all the testimony and I can state that I have reviewed the entirety of the transcripts in evidence from beginning to end.

And that is the transcript which is Petitioner's 1, State versus Torres, the trial of Mr. Torres.   It is dated October 28, '92, consists of some 735 pages.   In addition, Petitioner's 2 was a transcript from a prior habeas corpus petition known as Mr. Torres versus the State of Connecticut, CV960332553, and that was a transcript dated February 7, '97.   Petitioner's 3 was extremely helpful, that was a compact disc of both transcripts in Petitioner's 1 and 2. And Petitioner's 4 was a transcript dated October 12, '93, and that transcript was from the matter of State versus Juan Rivera and State versus Sammy Segarra, consolidated cases of two co-accuseds from the Judicial District of Bridgeport, or Fairfield at Bridgeport, with the appropriate docket numbers.   Petitioner's 5 was a transcript from a continuation of that same proceeding on October 13, State of Connecticut versus Juan Rivera and Sammy Segarra.

Petitioner's 4, just for clarity purposes, was testimony from Luis Alago back in 1993.   Mr. Alago appeared in this action and testified.   And Petitioner's 5 was testimony of Victor Oquendo, and Mr. Oquendo appeared yesterday as a witness in this matter as well.

With regard to this petition, the Court also heard testimony from the petitioner's former trial attorney, Dante Gallucci of Bridgeport, and the petitioner's former attorney on his habeas corpus petition, Attorney Eroll Skyers, also of Bridgeport.   With regard to this claim, this case arose ‘from a trial by jury in the Judicial District of Fairfield at Bridgeport before the Honorable Judge William Holden-strike that-that was the Honorable Judge Samuel Freedman.

The habeas matter, incidentally, was tried before Judge Barry Stevens.   And the Court took judicial notice of Judge Stevens' decision, which is an unpublished decision, it's very brief, it is available in the Lois Database.   In addition, the Court did have occasion to review a decision in the matter of State of Connecticut versus Gerardo Torres, Jr., which was a memorandum of decision from the Sentence Review Panel of Judges Miano, Ford, and Holden, dated February 25, 2003, wherein Mr. Torres sought review of his sentence.

With regard to this action, the Court makes the following findings.   Mr. Torres is in the custody of the Commissioner of Corrections, having been sentenced following a trial by jury, to a term of imprisonment of eighty-five years incarceration.   On November 5, 1992, in the matter of State versus Torres, the jury found the petitioner guilty of one count of murder in violation of Connecticut General Statute Section 53a-54a(a), one count of attempted murder in violation of Connecticut General Statute Section 53a-54a(a) and 53a-49, one count of carrying a pistol without a permit in violation of Connecticut General Statute Section 29-35 and 29-37b, and lastly, Mr. Torres was found guilty of conspiracy to commit murder in violation of Connecticut General Statute Section 53a-48.

The petitioner appealed his conviction unsuccessfully to the Appellate Court, which affirmed the judgment in the matter of State of Connecticut versus Gerardo Torres.   The petitioner previously brought a habeas corpus petition and in that matter was represented by Eroll Skyers of Bridgeport.   The Court, Judge Stevens, denied the petition in the matter that was referenced.

Here the petitioner alleges ineffective assistance of counsel by way of an amended petition dated December 28, 2009.   In the first count the petitioner alleges ineffective assistance of his trial counsel, Mr. Dante Gallucci.   In Count 2 the petitioner alleges ineffective assistance of his habeas counsel, Mr. Skyers.   The petitioner requests this Court grant the petition and vacate the judgment in the matter of State versus Torres and order release of the petitioner, and/or other relief in equity and law that may be required.

The respondent, essentially, denies the essential allegations of the petition in its return and special defense pleaded on January 6, 2010, and in that pleading the respondent raises a special defense of laches.   And I'm not clear whether there was a reply.   I believe a reply was filed by the petitioner denying the special defense, suffice to say.

With regard to this action, in as much as these are claims of ineffective assistance of counsel, firstly, with regard to the counts, this Court would note that a jury in the underlying matter could have reasonably found the following facts.   On June 26, 1991, the petitioner, along with several others, was in an area of Bridgeport, Connecticut on the eastside of the city in the area of Hallett and Arctic Street, among other locations.   At that time, the petitioner, along with others, encountered two other vehicles, one of which was operated by a Mr. David-strike that-a Mr. Gonzalez.   Mr. Gonzalez was known by street names Hector and Baby. In addition to Mr. Gonzalez driving a Bronco vehicle, there was a female in the vehicle along with two minors in the backseat, one two-year-old and one eight-year-old.   There was a second vehicle operated by Fitzgerald Guisti, known as Fiji, F-I-J-I.

Approximately three weeks prior, Mr. Gonzalez and Mr. Torres were involved in some type of altercation involving violence and gunshots in which Mr. Torres claimed to have been shot by Mr. Gonzalez.   Upon seeing the Gonzalez vehicle or vehicle driven by Hector, who was known to Mr. Torres, individuals with Mr. Torres brandished a number of firearms, including an Uzi automatic pistol, a 9mm, and .45 caliber pistol, and what can only be described as a barrage of bullets, approximately thirty-nine rounds, blasted away at the occupants of the Bronco.   One of the rounds fatally wounded the eight-year-old.

A jury could have found that Mr. Torres was not only at the scene with others, but also brandished a gun, which indeed fired a round or rounds into the Bronco.   At trial it's notable that the state presented testimony from Mr. Gonzalez, who stated that he, along with Mr. Guisti and others, had been down to Seaside Park earlier in the evening and had basically driven to the eastside for the purpose of purchasing marijuana.

At some point in time, Hector recognized the individual he knew as Nuno, aka, Mr. Torres, and individuals with Mr. Torres known by their street names.   At trial, under both examination by the state and cross examination, David Gonzalez, aka, Baby, aka, Hector, said that he was following Fiji, Mr. Guisti, because they planned to buy what he termed “weed” and went to Hallett and Jane Streets.   He recognized Nuno, along with individuals he described as Sammy, whom this Court infers to be Sammy, aka, Pito (phonetic) Segarra, an individual known as Kiki (phonetic), aka, Juan Rivera, and an Eggy (phonetic), that's a street name, and an Ivan Diaz.

At some point Mr. Gonzalez testified he heard Nuno say, “Let's do the truck,” which this Court infers to be the Bronco SUV, and he testified at page 155 of the transcript, Petitioner's 1, that he was positive he saw Gerardo holding a gun and shooting a gun and saw the flashing in the nighttime.   And this event occurred some time between 9:30 and 10:30 pm.

Mr. Gonzalez believed three individuals were firing weapons.   He described the petitioner's gun as an automatic Uzi machine-type pistol.   In addition to Mr. Gonzalez, the state presented testimony from Fitzgerald Guisti, aka, Fiji, that Mr. Guisti recognized all of the above named individuals, in addition to Nuno, Sammy, Kiki, Ivan, and.   Edgar.  I believe Edgar is also known as Big Nose. And at page 173 of Petitioner's 1, Guisti positively identifies Torres, again, by his known street name Nuno, admits that he never knew Torres' real name until the time of-some time later to this event.   He had known Nuno for about a year, and if I'm not mistaken, in his testimony said he might have even given Nuno a ride to Nuno's home at one time.

He testifies at page 178 of the transcript before the jury that Mr. Torres had a handgun, black, eight inches long.   Consistent with Gonzalez, he described Nuno, Sammy, Kiki, Ivan, and Edgar.

Significantly, at some point Mr. Guisti testified he yelled out when bullets were being fired, “My nephew is in the truck” and he related to the jury that he heard Mr. Torres say, “Fuck it.   Fuck it.   Just keep shooting.”   And that is a literal translation of the transcript.   The truck was all shot up.

There was vigorous cross examination by Mr. Gallucci of both witnesses.   It was brought out each had criminal history.   In addition to those witnesses, the state presented testimony from an Officer Herlihy of the Bridgeport Police Department, that upon being dispatched to the location of the event, he conducted an investigation, recovering, among other items, thirty-eight shell casings and one intact bullet.   He took photos in the area of Helen Street.

Officer Herlihy further testified that upon booking the petitioner on July 2nd, 1991 at approximately 8:00 pm, after being advised of Miranda rights, the police obtained a statement, a written statement, or signed statement from Mr. Torres, wherein significantly Mr. Torres admitted to having seen an individual he described as Hector driving, implicitly acknowledging familiarity with Mr. Gonzalez, aka, Baby.

Mr. Torres described the Bronco.   He stated that Edgar “Big Nose” had a gun.   He says he was with Sammy “Pito” Segarra.   That statement about Segarra I believe was revealed later.   There was a subsequent interview, an oral interview, a second police interview, wherein Mr. Torres stated that others, including Ivan, had guns.   Ivan had an Uzi, Edgar had a .45.   He acknowledged further that he had planned to go to Puerto Rico, but cancelled his plans.   He admitted that he had shot a gun before, I believe in his testimony;  that is Mr. Torres.   He stated that he was cousins with Sammy through some type of intermarriage.   Perhaps Sammy was married to I believe Mr. Torres' cousin and there was some familiar relationship with Rivera, possibly a cousin.

The prosecution also offered other witnesses regarding shell casings found, presented testimony from a Detective Gibbs regarding some ballistics, also presented testimony from a medical examiner, Ira Kanfer.   And thus the state presented significant evidence of eyewitness testimony putting a gun in the hands of Mr. Torres, firing it into the Bronco in which the eight-year-old was a passenger and mortally wounded.

Mr. Torres took the stand on his own defense and admitted, again, presence in the area of Hallet and Jane Street near the time of this event.   He admitted being with Sammy, Ivan, Juan, and Edgar.   He described Mr. Guisti pulling up and. he described Guisti as Fiji and Gonzalez as Hector, evidencing a knowledge of both individuals.   He said he knew Gonzalez as a drug dealer, Mr. Torres testified at page 374 of Petitioner's 1. He admitted to his own dealing drugs and prior dispute with Gonzalez.   He testified about the gunfight when he got shot.

It was brought out in Mr. Torres' testimony that he, in the prior incidents some weeks before this, went to the Milford Hospital where he sought treatment under a false name of Miguel Ruiz, who was some type of family relation to Mr. Torres.

Under aggressive cross examination by State's Attorney Satti, numerous of Mr. Torres' inconsistencies were brought out, specifically Mr. Torres' previous statement saying that Sammy was not present, Ivan was not present, and later indicating that Sammy and Ivan were present.   Suffice to say, there were numerous inconsistencies, and as Judge Freedman noted in his sentencing at page 730 of Petitioner's 1, in the Court's opinion, he, Mr. Torres, performed very badly on the stand.   He was not a good witness.   It was very clear that the jury did not believe him.   These were remarks, of course, by the Court at sentencing.   It was not evidence.   But, suffice to say, it was the Court's view and the Court observed the entirety of the trial, that Mr. Torres was not a believable witness.

Amid this backdrop, in the evidence, are the claims of the petitioner here.   Firstly, the petitioner claims ineffective assistance of his trial counsel, Mr. Gallucci.   In review of this claim and the evidence that bears upon it, the Court is obviously advised to follow the law from Strickland versus Washington, with which both counsel are familiar.   It is incumbent of the petitioner to prove both deficient performance and prejudice in order to prevail.

The petitioner complains that his trial attorney was not effective, or deficient, in that he at paragraph 30(a), failed to present the testimony of Luis Alago, and (b), failed to present the testimony of Victor Oquendo.   And, furthermore, that he was prejudiced as a result of counsel not calling either witness.   In this trial yesterday, the Court heard testimony from Mr. Alago, who is fifty-three at present, who, as is evidenced in the transcript, Petitioner's 4, testified in the matter of State versus Rivera and Segarra.

Notably, Mr. Alago yesterday testified he was in the attic of his home across from the cemetery at the location of this event when he looked out the window after hearing, “Boom, boom, boom” and could see several individuals in the street.   And in yesterday's testimony, he seemed pretty clear that this view was from an attic window and that he did not see any individuals holding any guns.

In evidence is the transcript from that prior testimony in '93, wherein the Court notes Mr. Alago testified that he could see at least one individual holding a gun.   And it appears that Mr. Alago testified he was on a main floor after departing a couch and went to the back porch and then returned to the front of the house after hearing the gunfire.   He testified inconsistent with those facts yesterday.

Suffice to say, this Court finds no prejudice by Mr. Gallucci not calling Mr. Alago.   The Court observes that Mr. Alago testified at Segarra and Rivera's trial and he did not testify at the matter of State versus Torres.   This Court need not get to the issue of deficient performance, inasmuch as this Court does not find any probative value of Mr. Alago's potential testimony as favoring the petitioner in any way that would change the outcome likely in this matter, given what this Court considers to be overwhelming and substantial evidence of guilt.

The Court accredits the testimony of Attorney Gallucci, and of note, reviewed his testimony from the prior habeas corpus petition, wherein Mr. Gallucci, who at the time he accepted employment to represent Mr. Torres, had tried some three or four murder cases, a lot more since 1993, but was experienced in serious criminal matters.   He testified about having an arrangement with another attorney who represented others, specifically one Frank Riccio, an experienced criminal practitioner in Bridgeport.

Gallucci said they essentially agreed to pool their investigation resources and he had an agreement with Riccio that if Riccio discovered anything of benefit to Gallucci through his or the investigator's work, that he would turn that information over to Gallucci.   And Gallucci essentially had a similar arrangement with Riccio.   The pair frequented the Bridgeport Courthouses in defense of serious criminal matters.   There were a number of investigators employed by the Public Defender's Office.   There was a canvass of the neighborhood by the investigators, and in Mr. Riccio's case, Mr. Riccio turned up Mr. Alago.   Mr. Gallucci could not recall the name of Mr. Alago in particular, but did testify credibly that had a name been brought to him, he would've investigated it and called any witness that would've been favorable to Mr. Torres.

What is significant in the habeas trial, Gallucci testified that Riccio told Gallucci, upon inquiry, whether there was any witness that might favor his client.   Riccio laughed and said, “Yeah, we've got two witnesses that help us.   But unfortunately they put the gun in your client's hands.”   At which Gallucci responded essentially I don't need to know their names.

So this Court makes a finding that Mr. Gallucci did undertake an investigation, reviewed all the state's evidence, the strengths and weaknesses of the state's case, he discussed strategy with his client, Mr. Torres, but for reasons I've already indicated needn't get to the issue of deficient performance regarding not calling Alago.

With regard to Mr. Oquendo, Mr. Oquendo essentially testified yesterday that he had a meeting with Fiji, also known as Fitzgerald Guisti, approximately a day after the shooting on June 27, at which time the pair traveled together in the city.   And according to Oquendo wanted to attach the formal names-Fiji wanted to attach the formal names of individuals whom he believed to be involved in this event and Fiji used the names of Nuno, Kiki, Pito, and the nicknames.   And thus this Court concludes it was for the purpose of confirming the actual names of those whom Fiji knew by street names, that he enlisted the assistance of Oquendo.

That being said, this Court finds little, if any, value in calling Oquendo to trial under the circumstances of this case, where for reasons already stated, both Torres and Gonzalez, also known as Hector, aka, Baby, they knew one another, each admitted knowledge of the other at trial.   Same can be said with regard to Fiji and Mr. Torres, they also knew one another, albeit, by the street name of Nuno and Fiji. So there really wasn't anything of value to be gained, in this Court's view, by calling Oquendo.   The Court does note the time Mr. Oquendo testified in the Segarra and Rivera matters, Mr. Oquendo had significant criminal history, including possession with intent to sell drugs and other felony offenses.

This Court views with skepticism, in any event, anything Mr. Oquendo said to this Court yesterday where in all fairness, Mr. Oquendo seemed quite partisan to his admitted acquaintance or friend, Mr. Torres, as he departed the witness stand and said good luck.   That's probably not a good thing to say if one wants to project impartiality upon departing the witness stand.

In any event, it's not clear, again, whether Mr. Oquendo was known to Mr. Gallucci at the time of the Torres trial.   Mr. Gallucci did not recall Mr. Oquendo's name.   This Court makes a finding that Mr. Gallucci did not seek out any transcript of the not guilty findings in the matter of Segarra and Rivera.   It's not clear whether any transcript existed.   It is more probable then not that there was some type of recording of testimony in those matters, nor does this Court opine that it would've been standard of care or incumbent upon I misspoke.

It was Mr. Skyers who did not obtain the transcript.   Mr. Torres' case went first.   Some time thereafter, Mr. Rivera and Mr. Segarra's case was tried.   Mr. Skyers-and I'm departing into Count 2-but he never obtained the transcript.   Of course a trial that didn't yet take place.   But this Court finds no deficiency by Mr. Skyers in not requesting a transcript of proceedings in the matters of State versus Rivera or State versus Segarra, notwithstanding the not guilty findings which may have resulted in those proceedings and the fact that Mr. Oquendo and Mr. Alago testified in that matter or those matters, the Segarra and Rivera matters.

Back to Mr. Gallucci.   Mr. Gallucci, as the Court has indicated, did an investigation.   There's no evidence before this Court to suggest that anyone, including Mr. Torres, brought the names of Oquendo or Alago to Mr. Gallucci's attention.   This Court finds no prejudice in not calling Mr. Oquendo.   The Court needn't reach the issue of deficient performance, but will opine that standard of care for an active criminal practitioner, even defending a felony murder case, does not require the attorney defending an individual to canvass a neighborhood, door to door, to seek out witnesses who might favor his client's position.   Investigation involves exploring all reasonable leads and trying to uncover evidence to help the client.   A door to door canvass, the type of which is conducted by police, this Court does not think is required.

In addition, it is not surprising that the memories of both Gallucci and Skyers were not good regarding a case they handled many years ago.   The Court was particularly impressed with Attorney Skyers, who testified quite candidly and unabashedly about his lack of recall about anything involving his representation of Mr. Torres.   And it is not surprising in any way, nor expected, that attorney, presumably without compensation, who is hailed into a court some twenty years later, doesn't have a file, doesn't seek to review a file, doesn't ask either respondent's or petitioner's counsel for transcripts, believing that the attorney is likely not being compensated for that time.   And so this Court doesn't fault either witness for even preparing for their testimony, other than present recall, and perhaps present memory refreshed by the review of documents in court.

In addition, the Court accredits the testimony of both attorneys that neither has any file this many years after this event.   The Court, although not reaching the issue, does observe that the respondent here raises the defense of laches, and this Court is not reaching the issue of laches other than to acknowledge that laches is a defense which stands for the proposition that so much time has passed that a party of prejudice by virtue of the passage' of time, and for reasons already indicated, the Court will not need to reach that special defense.

At the trial of Segarra and Rivera, suffice to say, Oquendo testified about matters regarding those individuals.   Again, there's nothing in the context of that testimony, which is Petitioner's 5, that suggests with probability that had Mr. Oquendo testified in the Torres matter, his testimony would in any way have favored the-or likely to have favored the petitioner or changed the outcome.

The Court finds unproven prejudice and unproven any deficient performance by trial counsel not calling Oquendo and Alago.   And for those reasons, Count 1 fails.

With regard to Count 2, the petitioner alleges ineffective assistance of his habeas counsel.   And it is notable that Mr. Skyers at present is an experienced attorney in both criminal and habeas matters.   He graduated law school from the North Carolina Central.   He did his undergraduate work at Washington and Lee, was admitted to the bar in approximately 1992.   He had some experience doing serious matters and habeas matters at the time he took on Mr. Torres' habeas claim.   The Court notes that at the time of his testimony yesterday, he had in excess of fifty criminal trials.   His practice is focused on personal injury and criminal practice.

Here, in ‘representing the petitioner, he reviewed the case for the purpose of advancing meritorious claims.   He made a claim of ineffective assistance of counsel, which was denied.   In that claim, he advanced claims on behalf of the petitioner that the trial attorney failed to adequately review, investigate, and prepare for trial.   The attorney specifically emphasized counsel's claimed failure to call any witnesses on his behalf, particularly a witness named Hernandez.   As this Court has noted, the petitioner did testify on his own behalf.

The Court notes the finding by Judge Stevens in his decision in the prior habeas where the Court credited the testimony of petitioner's special public defender, presumably Gallucci, that he adequately prepared for the case on the basis of the assistance and information provided to him by the petitioner, and that the witnesses who were identified prior to trial were not called because their expected testimony would not have been helpful.   And that was Judge Stevens' 1997 decision.

Here, Skyers credibly testified that he reviewed the transcripts from the underlying trial.   He did not seek, nor review any transcripts in the matter of State versus Segarra or State versus Rivera.   For reasons already indicated, the Court finds no prejudice by Skyers not advancing the claims of ineffective assistance of Gallucci as trial counsel for failing to call Alago and Oquendo.

Just to add, this Court in due respect, disagrees with the petitioner's argument that because Alago testified in Rivera and Segarra's case that one person had a gun, it was not a material and sufficient basis to raise reasonable doubt had he so testified in Torres.

For the foregoing reasons-And I should indicate that the case of the second count is guided-the Court is guided by the case of Lozada versus Commissioner.   It is incumbent to prove ineffective assistance of habeas counsel and prejudice on that prong and, essentially, counsel's required to prove two layers of ineffective assistance, the habeas attorney and the trial attorney.   This Court finds neither.   Neither attorney was deficient and there's no prejudice by not raising the claims that are made in this petition.

There's nothing to indicate that the petitioner and his trial was a miscarriage of justice, or that any order should issue from this Court granting the petition.   And for those reasons, Count 2 is denied and the petition for writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.   Should an appeal follow, I am requesting that petitioner's counsel prepare a judgment file within thirty days.   I am requesting that a transcript of this on-bench ruling be prepared for my signature.

It shall constitute a memorandum of decision.   I do note that the clerk has prepared notice of appeal and forms therewith and has handed same to the marshal.   I'm requesting that the marshal serve those notices on Mr. Torres and his attorney.   And the record shall reflect the marshal is doing that at this time.   And with that, this matter is concluded.   Court stands adjourned till 10:00 am tomorrow.

ATTY. EISENMAN:  Thank you, Your Honor.

(At which time, this matter was concluded.)

Nazzaro, John J., J.