Taylor v. Commissioner of Correction , 324 Conn. 631 ( 2017 )

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DEVON TAYLOR v. COMMISSIONER
OF CORRECTION
(SC 19462)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued November 14, 2016—officially released February 14, 2017
Peter Tsimbidaros, assigned counsel, for the appel-
lant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, James A. Killen, senior assistant state’s attor-
ney, and Marcia Pillsbury, assistant state’s attorney,
for the appellee (respondent).
Opinion
EVELEIGH, J. In this certified appeal, the petitioner,
Devon Taylor, appeals from the judgment of the Appel-
late Court affirming the denial of his amended writ of
habeas corpus. See Taylor v. Commissioner of Correc-
tion, 154 Conn. App. 686, 688–89, 108 A.3d 238 (2015).
On appeal, the petitioner claims that the Appellate
Court incorrectly concluded that he had failed to meet
his burden of demonstrating that the deficient perfor-
mance of his trial counsel, Kenneth Simon, in
responding to the trial court’s treatment of a jury note
had prejudiced the petitioner. Id., 721. We disagree with
the petitioner and, accordingly, affirm the judgment of
the Appellate Court.
The Appellate Court opinion sets forth the following
relevant facts and procedural history. ‘‘On August 27,
1993, [Jay Murray, the victim] and Ronald Wightwood,
[Murray’s] companion, were attempting to purchase
drugs [in Hartford]. They met the [petitioner] and indi-
cated to him that they wanted cocaine. The [petitioner]
and the victim discussed the purchase and the [peti-
tioner] entered the victim’s pickup truck and drove it
to the vicinity of a car wash on Albany Avenue. The
[petitioner] exited the truck and retrieved a plastic bag
containing a white powdery substance, which he gave
to the victim. After the victim sampled and rejected
the substance, the [petitioner] drove the truck and its
occupants to Milford Street. The [petitioner] left the
truck but returned several minutes later and shot the
victim with a revolver through the driver’s side window
of the truck. All of those events occurred in the presence
of Wightwood. The police found $150 in the truck and
also found the [petitioner’s] fingerprints on the exterior
and interior of the truck. . . . The victim later died in
a hospital.
‘‘The petitioner was charged with murder in violation
of General Statutes [Rev. to 1993] § 53a-54a and criminal
possession of a firearm in violation of General Statutes
[Rev. to 1993] § 53a-217. In 1997, a jury found the peti-
tioner guilty on both charges. The trial court . . . sen-
tenced the petitioner to a total effective term of sixty
years imprisonment. [The Appellate Court] affirmed the
judgment of conviction on appeal. [State v. Taylor, 52
Conn. App. 790, 801, 729 A.2d 226 (1999)].
‘‘Subsequently, the petitioner filed an amended peti-
tion for a writ of habeas corpus . . . . The amended
petition contains four counts. Count one alleges that
. . . Simon . . . provided ineffective assistance of
counsel on the grounds that, inter alia, [he] failed (1)
to introduce evidence to impeach the state’s primary
identification witness, Wightwood, (2) to adequately
seek to suppress Wightwood’s allegedly suggestive
identification of the petitioner . . . (3) to investigate
and introduce evidence to establish a third party culpa-
bility defense, (4) to impeach the expert opinion testi-
mony of Kenneth Zercie, an employee at the state
forensic laboratory, concerning fingerprint evidence,
and (5) to object to the trial court’s errors in its handling
of a jury note. Count two broadly alleges that Glenn
W. Falk, the petitioner’s appellate counsel, provided
ineffective assistance of counsel. Count three alleges
that the trial court violated the petitioner’s constitu-
tional rights by providing an erroneous charge to the
jury regarding the definition of the intent element of
murder. Count four broadly and vaguely alleges that
the petitioner’s incarceration violates his . . . rights
under the fifth and fourteenth amendments to the
[United States] constitution and article first, § 8, of the
Connecticut constitution. The respondent, the Commis-
sioner of Correction, filed a return denying the petition-
er’s allegations in the amended petition and raising the
special defense of procedural default with regard to the
petitioner’s claim in count three as to the trial court’s
instruction on the intent element of murder. The peti-
tioner filed a reply denying the respondent’s procedural
default defense. Both parties then filed pretrial briefs.
‘‘Following a trial to the [habeas] court, both parties
filed posttrial briefs. Approximately seven months after
the parties filed their posttrial briefs, the [habeas] court
held a hearing wherein the parties appeared on the
record and discussed some of the issues raised before
the [habeas] court. In particular, the [habeas] court and
the parties discussed the petitioner’s claims pertaining
to the trial court’s handling of the jury note. The
[habeas] court then permitted the parties to provide
supplemental briefs regarding those claims, which both
parties submitted a few weeks thereafter.
‘‘The [habeas] court . . . subsequently issued a
memorandum of decision denying the petition. First,
the [habeas] court concluded that Simon did not render
ineffective assistance of counsel, rejecting multiple alle-
gations underlying the petitioner’s claim. Second, the
[habeas] court concluded that Falk did not provide inef-
fective assistance of counsel. Third, the [habeas] court
concluded that the petitioner’s claim that the trial court
committed constitutional error in its charge to the jury
regarding the intent element of murder was procedur-
ally defaulted and, in any event, meritless because the
charge was correct and not misleading. Fourth, the
[habeas] court concluded that the petitioner’s claim
that the trial court committed constitutional error in
its handling of the jury note was both procedurally
defaulted and not raised properly before the habeas
court. Nonetheless, the [habeas] court considered the
claim on its merits, concluding that the trial court’s
errors did not prejudice the petitioner and were, there-
fore, harmless. Finally, the [habeas] court rejected the
petitioner’s broad claim in count four that his incarcera-
tion violated his constitutional rights, citing its conclu-
sions that the petitioner did not prove any of his
allegations in counts one, two, or three of his
amended petition.
‘‘The petitioner filed a petition for certification to
appeal from the [habeas] court’s judgment [to the Appel-
late Court], which [was] granted. Before filing his appeal
with [the Appellate Court], the petitioner filed a motion
for reconsideration, which the habeas court denied. The
petitioner then filed a motion for rectification, arguing
that the habeas court improperly failed to use a struc-
tural error analysis to determine whether the trial court
had violated his constitutional rights. The habeas court
denied his motion.’’ (Citations omitted; footnotes omit-
ted; internal quotation marks omitted.) Taylor v. Com-
missioner of Correction, supra, 154 Conn. App. 689–92.
On appeal to the Appellate Court, the petitioner
claimed, inter alia, ‘‘that the [habeas] court erroneously
concluded that . . . [Simon] did not render ineffective
assistance of counsel for his failure to . . . object to
the trial court’s errors in its handling of a jury note.’’ Id.,
688. The Appellate Court rejected this claim, concluding
that ‘‘[b]oth the petitioner and the habeas court agree
that Simon’s performance in relation to the jury note
was deficient. His deficient performance did not, how-
ever, prejudice the petitioner.’’ Id., 720. The Appellate
Court further concluded that ‘‘we agree with the
[habeas] court that this is not one of the rare instances
wherein a petitioner need not prove prejudice to estab-
lish an ineffective assistance of counsel claim. . . . We
are not persuaded that the circumstances of this case
require us to remove from the petitioner the burden to
prove prejudice.’’ (Citations omitted; footnote omitted.)
Id., 721–22. Thereafter, the petitioner filed a petition for
certification to appeal to this court, which was granted.1
On appeal to this court, the petitioner claims that the
Appellate Court incorrectly affirmed the judgment of
the habeas court denying his petition. Specifically, the
petitioner asserts that the Appellate Court incorrectly
required him to demonstrate prejudice from Simon’s
handling of the jury note during trial.
We begin by setting forth the legal principles and
standard of review applicable to the petitioner’s appeal.
‘‘The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight to
be given to their testimony.’’ (Internal quotation marks
omitted.) Taylor v. Commissioner of Correction, 284
Conn. 433, 448, 936 A.2d 611 (2007). The application of
historical facts to questions of law that is necessary
to determine whether the petitioner has demonstrated
prejudice under Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), however, is
a mixed question of law and fact subject to our plenary
review. See, e.g., Copas v. Commissioner of Correction,
234 Conn. 139, 152–53, 662 A.2d 718 (1995).
‘‘As enunciated in Strickland . . . [a] claim of inef-
fective assistance of counsel consists of two compo-
nents: a performance prong and a prejudice prong. To
satisfy the performance prong . . . the petitioner must
demonstrate that his attorney’s representation was not
reasonably competent or within the range of compe-
tence displayed by lawyers with ordinary training and
skill in the criminal law. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
Fernandez v. Commissioner of Correction, 291 Conn.
830, 838, 970 A.2d 721 (2009). A court can find against
a petitioner, with respect to a claim of ineffective assis-
tance of counsel on either the performance prong or
the prejudice prong, whichever is easier. Washington
v. Commissioner of Correction, 287 Conn. 792, 852–53,
950 A.2d 1220 (2008).
The following additional facts, as found by the habeas
court, are relevant to the present appeal. ‘‘On the third
day of deliberations, the trial court received a jury note
signed by the foreperson.2 The note read:
‘‘ ‘Judge Barry—I have polled the jury [four] times
after various deliberations and discussions. Votes were
as follows on the charge of murder:
‘‘ ‘10-8-97 4G 5NG 3 undecided
‘‘ ‘10-9-97 6G 5NG 1 undecided
‘‘ ‘10-9-97 7G 5NG
‘‘ ‘10-10-97 7G 5NG
‘‘ ‘I started discussion this [morning] with a proposal
to compromise—that is, that we would find [the peti-
tioner] not guilty on murder and move to convict on a
lesser charge. This proposal was rejected by [four]
jurors.
‘‘ ‘Deliberations continued and a [fourth] vote was
taken.
‘‘ ‘Next steps??’ ’’
‘‘The court had the following exchange with the fore-
person after receiving the note:
‘‘ ‘The Court: . . . Let me ask you . . . am I correct,
having read your note—would I be correct to state that
the jury is in disagreement as to a verdict of guilty or
not guilty regarding the first count of murder?
‘‘ ‘The Foreperson: Yes, Your Honor. And, therefore,
we never got to the second count.
‘‘ ‘The Court: I understand. I believe that you have
deliberated for a total of somewhere around four hours
or approximately a little more. And I may be wrong
about that. But both yesterday and today and for a total
of four to five hours, I believe, but I’m not certain. In
any event, I believe more deliberations are necessary.
I want to remind you that you have to deal with count
one as charged first, that is the charge of murder, and
reach a unanimous decision of guilt or [innocence] as
to that charge, if you possibly can. If your unanimous
verdict is guilty, you will move on to count two. If your
unanimous verdict on murder in the first count is not
guilty, then and only then will you consider lesser
included offenses of murder as I instructed you. And
then, after having done that, you would move on to
count two.
‘‘ ‘If you remain in disagreement on the charge of
murder after further deliberations, let us know in the
same manner with simply a note to the effect that you
are in disagreement on the first count, and we will bring
you back into court for further instructions.’
‘‘After the jury left the courtroom, the court marked
the note as a court exhibit and sealed it. The court
stated that a verbatim recitation of the note’s contents
was not placed into the record or revealed to counsel,
but that counsel knew that the jury was in disagreement
about reaching a unanimous verdict on the murder
charge and was seeking advice on how to proceed.
Counsel did not object to the trial court’s decision to
seal the note or its instruction to the jury following
receipt of the note. The note was unsealed for the first
time during the habeas trial. . . .
‘‘The [habeas] court first concluded that Simon’s per-
formance was deficient in regard to the jury note. The
[habeas] court found that the trial court failed to follow
Practice Book § 42-49, which required a court to articu-
late its reasoning on the record if it decided to seal any
portion of the court’s file. The [habeas] court further
found that, in any event, a trial court could not prevent
a defendant from viewing the contents of a jury note.
In addition, the court noted that Practice Book § 42-7
required a court to provide notice and a ‘reasonable
opportunity to be present’ to parties before communi-
cating with jurors on any aspect of a case. The [habeas]
court determined that the trial court failed to follow
these procedures.
‘‘Furthermore, the [habeas] court found the following
regarding Simon’s performance. Simon did not request,
on the record, to see the note; Simon did not object
to the [trial] court’s handling of the note; reasonably
competent trial counsel would have known the law, as
it existed at the time of the petitioner’s trial, concerning
jury notes; reasonably competent counsel would have
been aware of his or her client’s rights to view a jury
note and respond to it; there was no strategic or tactical
reason not to request, on the record, to view the note;
there was no strategic or tactical reason not to object
to the court’s handling of the note; and any off-the-
record discussion by Simon with the trial court judge
about the note, if it occurred, did not constitute a suffi-
cient substitute for discussing the note on the record.
On the basis of these findings, the [habeas] court con-
cluded that Simon’s performance was deficient as it
related to the trial court’s handling of the note.
‘‘The [habeas] court proceeded to conclude that
Simon’s deficient performance, as it related to the jury
note, did not prejudice the petitioner.’’ (Footnotes
altered.) Taylor v. Commissioner of Correction, supra,
154 Conn. App. 712–16. The habeas court stated ‘‘that
the trial court addressed the note ‘in the most typical
of ways’ by instructing the jury in open court to, inter
alia, continue deliberating and reach a unanimous ver-
dict on the murder charge before considering lesser
included offenses and the other charge. According to
the habeas court, a Chip Smith3 charge was neither
provided to the jury nor needed by the jury at that point
in its deliberations. Because the trial court’s response
to the note was reasonable, the court determined that
Simon would not have suggested any alternative
response to the note had the trial court shared the
contents of the note with him. The habeas court found
that ‘[t]he petitioner presented no evidence, either from
. . . Simon or [through an expert witness], that compe-
tent counsel would have done anything differently had
they been aware of the note.’ On the basis of its forego-
ing findings, the court concluded that it could ‘not see
how the outcome of the trial could have reasonably
been different had the trial court shown [the jury note]
to the petitioner and . . . Simon, and given them an
opportunity to respond.’ ’’ (Footnote added.) Id.,717–18.
On appeal to this court, the petitioner claims that the
harmless error doctrine does not apply because the
defects were structural in nature. He claims that these
defects implicated his rights to be present during a
critical stage of the proceedings. Under the unique cir-
cumstances of this case, he claims, prejudice should
be presumed. In the alternative, if not a structural error,
the petitioner claims that he was prejudiced by Simon’s
failure to object to the sealing of the note because he
was deprived of the opportunity to inquire into the
nature of the compromise and to suggest to the court
that its response to the note should include a thorough
Chip Smith instruction, rather than the defective Chip
Smith charge that he claims the court provided. We
disagree.
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
. . . . Under Strickland, the petitioner has the burden
of demonstrating 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. . . . For
claims of ineffective assistance of counsel arising out
of the plea process, the United States Supreme Court
has modified the second prong of the Strickland test
to require that the petitioner produce evidence that
there is a reasonable probability that, but for counsel’s
errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial. . . . An inef-
fective assistance of counsel claim will succeed only
if both prongs [of Strickland] are satisfied.’’ (Internal
quotation marks omitted.) Dyous v. Commissioner of
Mental Health & Addiction Services, 324 Conn. 163,
186, A.3d (2016).
‘‘The issue of whether the representation that a defen-
dant received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, the
question requires plenary review unfettered by the
clearly erroneous standard. . . . In our review of this
claim, we afford great deference to the habeas court’s
factual findings, which underlie its legal conclusions.
The habeas court is afforded broad discretion in making
its factual findings, and those findings will not be dis-
turbed unless they are clearly erroneous. . . . Thus,
[t]his court does not retry the case or evaluate the
credibility of the witnesses. . . . Rather, we must defer
to the [trier of fact’s] assessment of the credibility of
the witnesses based on its firsthand observation of their
conduct, demeanor and attitude. . . . The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony.’’ (Citation omitted; internal quotation
marks omitted.) Id., 187.
The United States Supreme Court has, however, rec-
ognized that ‘‘[i]n certain . . . contexts [pertaining to
the sixth amendment to the United States constitution],
prejudice is presumed.’’ Strickland v. Washington,
supra, 408 U.S. 692. ‘‘In United States v. Cronic, [466
U.S. 648, 659–60, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)],
which was decided on the same day as Strickland,
the United States Supreme Court elaborated on the
following three scenarios in which prejudice may be
presumed: (1) when counsel is denied to a defendant
at a critical stage of the proceeding; (2) when counsel
‘entirely fails to subject the prosecution’s case to mean-
ingful adversarial testing’; and (3) when counsel is
called upon to render assistance in a situation in which
no competent attorney could do so. Notably, the second
scenario constitutes an ‘actual breakdown of the
adversarial process,’ which occurs when counsel com-
pletely fails to advocate on a defendant’s behalf.’’ Davis
v. Commissioner of Correction, 319 Conn. 548, 555, 126
A.3d 538 (2015), cert. denied sub nom. Semple v. Davis,
U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016).
The United States Supreme Court has emphasized in
Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 160
L. Ed. 2d 565 (2004), Mickens v. Taylor, 535 U.S. 162,
166–67, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), and
Bell v. Cone, 535 U.S. 685, 696–97, 122 S. Ct. 1843, 152
L. Ed. 2d 914 (2002), how ‘‘seldom circumstances arise
that justify a court in presuming prejudice,’’ and ‘‘con-
comitantly, in forgoing particularized inquiry into
whether a denial of counsel undermined the reliability
of a judgment . . . .’’ Ellis v. United States, 313 F.3d
636, 643–44 (1st Cir. 2002), cert. denied, 540 U.S. 839,
124 S. Ct. 99, 157 L. Ed. 2d 72 (2003). ‘‘[T]here is a very
limited class of cases involving error that is structural,
that is to say, error that transcends the criminal process.
Johnson v. United States, 520 U.S. 461, 468, 117 S.
Ct. 1544, 137 L. Ed. 2d 718 (1997), citing Sullivan v.
Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed.
2d 182 (1993) (defective reasonable doubt instruction);
Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L.
Ed. 2d 598 (1986) (racial discrimination in selection of
grand jury); Waller v. Georgia, 467 U.S. 39, 104 S. Ct.
2210, 81 L. Ed. 2d 31 (1984) (denial of public trial);
McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79
L. Ed. 2d 122 (1984) (denial of self-representation at
trial); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.
792, 9 L. Ed. 2d 799 (1963) (complete denial of counsel);
Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed.
749 (1927) (biased trial judge).
‘‘Structural [error] cases defy analysis by harmless
error standards because the entire conduct of the trial,
from beginning to end, is obviously affected . . . .
These cases contain a defect affecting the framework
within which the trial proceeds, rather than simply an
error in the trial process itself. . . . Such errors infect
the entire trial process . . . and necessarily render a
trial fundamentally unfair . . . . Put another way,
these errors deprive defendants of basic protections
without which a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or
innocence . . . and no criminal punishment may be
regarded as fundamentally fair.’’ (Internal quotation
marks omitted.) State v. Lopez, 271 Conn. 724, 733–34,
859 A.2d 898 (2004).
The petitioner argues that the circumstances of the
present case constituted both structural error and a
situation in which both the first and second exceptions
in Cronic, which excuse the petitioner from demonstra-
ting prejudice under the sixth amendment, were met.
We note that, because the petitioner never raised the
claim of structural error under the first exception in
Cronic before either the habeas court or the Appellate
Court, that claim is not properly before this court
because it was procedurally defaulted. Indeed, an
accused is denied counsel at a critical stage of the trial
‘‘when counsel was either totally absent, or prevented
from assisting the accused during a critical stage of the
proceeding.’’ United States v. Cronic, supra, 466 U.S.
659 n.25. This exception applies to the denial of counsel
by government action, i.e., the actions of the trial court,
rather than attorney error. Id.; see also Bell v. Cone,
supra, 535 U.S. 695–96 and n.3. Like structural error,
the type of sixth amendment violation envisioned under
the first exception set forth in Cronic is fully capable
of being raised and decided in the trial court or on
direct appeal. Unlike a typical claim of ineffective assis-
tance of counsel under Strickland, which can only be
adequately litigated in a collateral proceeding; see State
v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied,
476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986);
claims of structural error based on the complete denial
of counsel in a proceeding would be apparent on the
record. See State v. Arline, 223 Conn. 52, 63–65, 612 A.2d
755 (1992) (restriction on defendant’s final argument
violated right to effective assistance of counsel).
Indeed, as the Appellate Court properly concluded,
the petitioner’s claim of structural defect was procedur-
ally defaulted precisely because it was a claim that
could have, and should have, been raised at trial or on
direct appeal. Taylor v. Commissioner of Correction,
supra, 154 Conn. App. 725–27. Moreover, both the peti-
tioner’s claim of structural error and his claim under
the first exception in Cronic are identical. Indeed, if
sealing the note were to be equated with the denial of
counsel, then such a denial would constitute structural
error and excuse the petitioner from having to show
prejudice. Consequently, the petitioner’s claim under
the first exception in Cronic is subject to procedural
default, just as the habeas court found that his structural
error claim had been procedurally defaulted.4
The petitioner also asserts that this court should pre-
sume prejudice under the second exception in Cronic
because his counsel did not fairly test the adversarial
process when he failed to object to the sealed note.
This specific claim was not raised in the habeas court,
the Appellate Court, or in the petition for certification
to this court. Therefore, we decline to review it. See
Bennett v. New Milford Hospital, Inc., 300 Conn. 1,
32–33, 12 A.3d 865 (2011) (refused to review claim not
preserved before trial court or Appellate Court, request
for review pursuant State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 [1989], for first time in reply brief,
and constitutional claim not included in petition for
certification to appeal from judgment of Appellate
Court).5
The petitioner relies on State v. Lopez, supra, 271
Conn. 739, to support his claim that the error in the
present case is structural in nature. Lopez, however,
held found structural error only because the defendant
in that case was represented, in absentia, by counsel
with a possible conflict of interest that was the subject
of the inquiry. Id., 734. In Lopez, the conflict of interest
fell within the very limited class of cases involving error
that is structural and transcends the criminal process
because the deprivation of the defendant’s right to be
present was unquantifiable and indeterminate. Id., 738.
In the present case, by contrast, the failure to object
to the sealed note was readily identifiable, and was
capable of being quantitatively assessed in the context
of the criminal trial. Consequently, Lopez is distinguish-
able and does not support the petitioner’s claim of struc-
tural error in the present case.
The petitioner also asserts that this court should
apply the reasoning of People v. O’Rama, 78 N.Y.2d
270, 274–75, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991),
wherein the trial court received three jury notes indicat-
ing deadlock, and the court administered a deadlocked
jury charge, similar to our Chip Smith charge, in
response to two of the notes. The trial court judge had
sealed one of the notes and counsel for the defendant
objected. Id., 275. The New York Court of Appeals found
that the trial court had erred by sealing the note without
apprising the parties of its contents. Id., 280. Specifi-
cally, the New York Court of Appeals stated that ‘‘[m]an-
ifestly, [the] defendant was prejudiced by the court’s
actions, since the decision to withhold the contents of
the juror’s note deprived him of the opportunity to have
input, through counsel or otherwise, into the court’s
response to an important, substantive juror inquiry.’’
(Footnote omitted.) Id., 279–80. However, as the Appel-
late Court properly concluded in the present case,
O’Rama may be distinguished because that case
involved a direct appeal on the basis of a trial court’s
failure to follow a particular rule of state criminal proce-
dure, rather than a claim of ineffective assistance of
counsel brought by means of a petition for habeas cor-
pus. Taylor v. Commissioner of Correction, 154 Conn.
App. 722. Our state jurisprudence has recognized that
Cronic must be interpreted narrowly and applied rarely.
Vasquez v. Commissioner of Correction, 128 Conn.
App. 425, 436–38, 17 A.3d 1089, cert. denied, 301 Conn.
926, 22 A.3d 1277 (2011).
Furthermore, it is well established that ex parte com-
munications between a judge and a jury, including cir-
cumstances that implicate the defendant’s right to be
present and the right to assistance of counsel, are sub-
ject to harmless error review. See State v. Wooten, 227
Conn. 677, 705–706, 631 A.2d 271 (1993) (ex parte com-
munication between judge and juror subject to harmless
error); State v. McCall, 187 Conn. 73, 81–82, 444 A.2d
896 (1982) (although judge’s ex parte conversation with
jury foreman in chambers constitutionally prohibited,
prejudice must be found to warrant mistrial, burden on
state on direct appeal to prove communication harmless
beyond reasonable doubt); State v. Hackett, 182 Conn.
511, 522–24, 438 A.2d 726 (1980) (although judge’s ex
parte communication with juror arguably technical vio-
lation of right to be present and to have assistance of
counsel, no reversible error in absence of prejudice).
Many federal circuit courts are in accord. See, e.g.,
United States v. Robinson, 560 F.2d 507, 516 (2d Cir.
1977) (‘‘there was little or no need for’’ trial court to
consult with counsel concerning court’s response to
jury note that revealed vote split), cert. denied, 435 U.S.
905, 98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978); see also
United States v. Toliver, 330 F.3d 607, 612 (3rd Cir.
2003) (harmless error analysis applies when trial judge
answers jury’s note without defendant or his counsel
being present). Consequently, in view of the overwhelm-
ing authority, the Appellate Court correctly concluded
that the petitioner was not excused from proving preju-
dice in a collateral proceeding on the basis of a claim
that is subject to harmless error analysis on direct
appeal.
The petitioner asserts that he was prejudiced
because, had the contents of the note been disclosed,
counsel would have requested a Chip Smith charge in
response to the jury’s deadlock and inquired into the
nature of the proposed compromise. Had the jury been
instructed not to abandon their conscientiously held
views, he maintains, they would not have convicted him
for murder. We disagree.
The prejudice prong of Strickland requires that the
petitioner prove that there was a reasonable probability
that the outcome of his trial would have been different
had the petitioner and his counsel viewed the note.
See Taylor v. Commissioner of Correction, supra, 154
Conn. App. 721. The petitioner failed to meet his
required degree of proof in this instance because he
presented no evidence that competent counsel would
have requested a Chip Smith charge at that point in the
deliberation process. Id., 717–21. Moreover, the peti-
tioner presented no evidence that, had he requested a
Chip Smith charge under the circumstances, the court
would have adopted his suggestion, or that the issuance
of such a charge would have established a reasonable
probability that the petitioner would not have been
convicted of murder. See State v. Wooten, supra, 227
Conn. 706–708. The Appellate Court properly held that
the jury was not deadlocked, and that the trial court
did not administer a Chip Smith charge, let alone a
defective one as alleged by the petitioner. Taylor v.
Commissioner of Correction, supra, 154 Conn. App.
720–22.6 The Appellate Court further correctly held that
the trial court appropriately directed the jury to con-
tinue its deliberations and addressed the proposal to
compromise by instructing the jury that they must reach
a unanimous verdict on the murder charge before con-
sidering any lesser included offenses or the other
charge. Id.The jury in the present case had been deliberating
for only four to five hours and had reviewed selected
portions of witness testimony and instructions, the trial
court addressed all jurors together, there was no indica-
tion that the jury was deadlocked, and the trial court
did nothing to signal that the jury should decide the
case in a certain way. Because a Chip Smith charge is
designed to encourage a deadlocked jury to reach a
verdict and, in the present case, the jury gave no indica-
tion that further deliberations would be fruitless, the
trial court would not likely have so instructed at that
early point in the deliberations, regardless of whether
counsel had suggested that charge. The jury had merely
reported the posture of the voting, in general terms,
indicated that disagreements existed, and inquired as
to the next steps. See United States v. Figueroa-Encar-
nacion, 343 F.3d 23, 31–32 (1st Cir. 2003) (no plain
error where jury reported that they would not be able
to reach verdict after having deliberated almost four
hours, and court merely instructed jury to continue
deliberating), cert. denied sub nom. Medina v. United
States, 540 U.S. 1140, 124 S. Ct. 1130, 157 L. Ed. 2d
951 (2004).
The petitioner further claims that he was prejudiced
because he, himself, was prevented from inquiring into
the nature of the compromise discussed by the jury
foreperson and, thus, was prevented from suggesting
a suitable response. Again, his claim must be rejected
because he offered no evidence to support it. Moreover,
the trial court would not have permitted an inquiry into
the nature of the proposed compromise in the middle
of deliberation because to do so would have violated
the sanctity of the deliberation process. See State v.
West, 274 Conn. 605, 650, 877 A.2d 787 (recognizing
cardinal principle that deliberations of jury shall remain
private and secret; primary if not exclusive purpose of
jury privacy and secrecy is to protect jury’s delibera-
tions from improper influence). Thus, the petitioner
cannot prove prejudice based on his claim that coun-
sel’s failure to object to the sealing of the note violated
his right to be present. He failed to prove that he would
have had something to contribute by way of influencing
the proceedings.
The petitioner also argues that the short period of
deliberations following the court’s failure to instruct
on the proceedings7 supports his claim of prejudice. The
extent of the deliberations after the court responded to
the sealed note, however, demonstrates that the jury
received the instruction to continue in a responsible
manner and it did so. They deliberated approximately
four and one-half hours after the instructions. There-
fore, the petitioner cannot prevail on any of his claims
of prejudice.
To obtain review by this court, a party aggrieved by
a judgment of the Appellate Court must file, and this
court must grant, a petition for certification to appeal.
See General Statutes § 51-197f (limiting appeals by par-
ties from Appellate Court judgments to cases certified
for review ‘‘upon petition by an aggrieved party’’); see
also Practice Book § 84-1; State v. Albino, 312 Conn.
763, 770–71, 97 A.3d 478 (2014). Review by this court
by way of a petition for certification to appeal is not a
matter of right but a matter of discretion. General Stat-
utes § 51-197f; Practice Book § 84-2. The certification
process enables this court to limit its consideration
to ‘‘appropriate issue[s], without the necessity of also
considering issues that do not warrant review by this
court.’’ (Internal quotation marks omitted.) State v.
Ellis, 224 Conn. 711, 722, 621 A.2d 250 (1993).
In his brief to this court, the petitioner presented the
following issues as ‘‘alternative grounds’’ for reversing
the judgment of the Appellate Court: (1) that Simon
rendered ineffective assistance in failing to introduce
certain evidence that Wightwood was too drunk to
make an identification, and that the habeas court and
the Appellate Court had erred in concluding that this
evidence had been presented to the jury through the
testimony of Luisa St. Pierre, a detective at the Hartford
Police Department; and (2) that the appellate counsel
was ineffective for failing to move to have the note
unsealed and for failing to raise claims ‘‘regarding
the note.’’
The petitioner raised the first claim in his petition
for certification, and this court specifically decided not
to include it in its certified questions. See State v. Cote,
314 Conn. 570, 580–81, 107 A.3d 367 (2014) (this court
would not review claim that was beyond scope of certi-
fied question). The petitioner failed to raise the second
claim in his petition for certification, despite the oppor-
tunity to do so. Having been denied certification on the
first claim, and having forgone the opportunity to seek
certification of the second claim, he cannot now be
permitted to obtain review of either claim with any
additional special permission of the court.8 Accordingly,
we decline to consider these claims in the present
appeal.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
We granted certification limited to the following two issues: (1) ‘‘Did
the Appellate Court properly determine that [Simon’s] deficient performance
in responding to the treatment of the jury note was subject to harmless
error analysis, under which the petitioner bore the burden of proving harm?’’;
and (2) ‘‘If so, did the Appellate Court properly determine that the petitioner
failed to meet that burden?’’ Taylor v. Commissioner of Correction, 316
Conn. 905, 906, 111 A.3d 881 (2015). In accordance with our long-standing
policy of reframing certified questions to more accurately reflect the issues
presented on appeal, we now reframe the certified questions in the present
case as follows: (1) If Simon’s performance was deficient, as held by the
Appellate Court, did the Appellate Court properly determine that it was the
petitioner’s burden to prove that the deficient performance in responding
to the treatment of the jury note prejudiced him?; and (2) Did the Appellate
Court correctly determine that the petitioner had failed to demonstrate
prejudice? See State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010);
Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191,
884 A.2d 981 (2005).
2
‘‘According to the habeas court, the jury did not commence deliberations
on its first day of deliberations until late in the day, after hearing closing
arguments and jury instructions. The jury spent the majority of its second
day of deliberations discussing various prior jury notes with the court and
hearing playbacks of testimony and instructions. After hearing the playbacks,
the jury deliberated for approximately four hours before submitting the note
of the third day of deliberations.’’ Taylor v. Commissioner of Correction,
supra, 154 Conn. App. 712 n.17.
3
A Chip Smith charge provides guidance to a deadlocked jury in reaching
a verdict. See State v. O’Neil, 261 Conn. 49, 74–75, 801 A.2d 730 (2002).
We have adopted the following language for Chip Smith charges: ‘‘The
instructions that I shall give you now are only to provide you with additional
information so that you may return to your deliberations and see whether
you can arrive at a verdict.
‘‘Along these lines, I would like to state the following to you. The verdict
to which each of you agrees must express your own conclusion and not
merely the acquiescence in the conclusion of your fellow jurors. Yet, in
order to bring your minds to a unanimous result, you should consider the
question you have to decide not only carefully but also with due regard and
deference to the opinions of each other.
‘‘In conferring together, you ought to pay proper respect to each other’s
opinions and listen with an open mind to each other’s arguments. If the
much greater number of you reach a certain conclusion, dissenting jurors
should consider whether their opinion is a reasonable one when the evidence
does not lend itself to a similar result in the minds of so many of you who
are equally honest and equally intelligent, who have heard the same evidence
with an equal desire to arrive at the truth and under the sanctions of the
same oath.
‘‘But please remember this. Do not ever change your mind just because
other jurors see things differently or to get the case over with. As I told
you before, in the end, your vote must be exactly that—your own vote. As
important as it is for you to reach a unanimous agreement, it is just as
important that you do so honestly and in good conscience.
‘‘What I have said to you is not intended to rush you into agreeing on a
verdict. Take as much time as you need to discuss the matter. There is no
need to hurry.’’ (Emphasis omitted.) Id.4
Even if we were to assume, arguendo, that the trial court erred in failing
to disclose to counsel the contents of the note, such error was no more
properly characterized as a denial of counsel than would a trial court’s
error in, for example, precluding counsel from asking certain questions of
witnesses or denying counsel access to certain records. See United States
v. Fernandez, 652 F.3d 56, 62–64 (1st Cir.) (trial court’s error in responding
to jury notes during deliberations, seeking transcripts that were not available,
without alerting counsel, not prejudicial), cert. denied sub nom. Gonzalez-
Melendez v. United States, 565 U.S. 924, 132 S. Ct. 353, 181 L. Ed. 2d 223(2011); United States v. Gonzalez-Melendez, 594 F.3d 28, 36–37 (1st Cir.
2010) (court’s failure to disclose to parties jury note that requested copies of
indictment and instructions and concluded with ambiguous phrase ‘‘ ‘please
explain,’ ’’ and its response, subject to harmless error analysis).
5
We note that, even if this claim were to be reviewed on its merits, it
would fail because the United States Supreme Court made clear in Bell v.
Cone, supra, 535 U.S. 697, that the second exception in Cronic applies only
when the attorney’s failure is complete, rather than simply an alleged failure
at specific points in the trial, as in this case. Counsel must ‘‘entirely [fail] to
subject the prosecution’s case to meaningful adversarial testing.’’ (Emphasis
omitted; internal quotation marks omitted.) Id.6
The petitioner relies on United States v. Ronder, 639 F.2d 931, 932 (2d
Cir. 1981), and argues that the trial court’s instruction to the jury in response
to the note in the present case constituted a defective, prejudicial Chip
Smith charge that required correction. In Ronder, a jury submitted three
notes to the trial court on its final day of deliberations. Id., 932–33. The trial
court did not share the contents of the notes with counsel and unilaterally
responded to each note. Id. The United States Court of Appeals for the
Second Circuit concluded that the trial court committed reversible error by
not revealing the contents of the notes to counsel, explaining that counsel
could have contributed valuable input in tailoring the court’s response to
each note. Id., 934–35. In addition, as the Appellate Court noted in its opinion
‘‘the Second Circuit emphasized that the evidence in the case was sharply
disputed and that the jury had twice reported a deadlock, making defense
counsel’s involvement in the court’s responses to the notes critical.’’ Taylor
v. Commissioner of Correction, supra, 154 Conn. App. 716–17. Ronder is
distinguishable on the grounds that, the jury here was not deadlocked, the
trial court had not provided the jury with a defective Chip Smith charge,
but merely instructed the jury to continue deliberating and to reach a verdict
on the murder charge before considering any lesser included offenses or
the other charge, and there was no evidence that the jury felt pressured to
reach a verdict after receiving the court’s instruction in response to the note.
7
The petitioner also claims, in the context of his prejudice argument, that
counsel’s failure to object to an alleged erroneous instruction on intent
contributed to prejudice. This issue is not properly before this court. The
habeas court rejected this argument, and the petitioner did not challenge
that ruling on appeal before the Appellate Court. Taylor v. Commissioner
of Correction, supra, 154 Conn. App. 720 n.24.
8
As to the first of these two claims, the Appellate Court agreed with
the habeas court that, although Simon did not introduce the evidence in
question—namely, a document authored by St. Pierre indicating that Wight-
wood had been too drunk to make an identification—the document was
used on cross-examination ‘‘to orally publish St. Pierre’s written statement
in the document to the jury,’’ and, thus, the petitioner had not met his burden
to prove that Simon’s performance was deficient for failing to introduce that
document to impeach Wightwood. Taylor v. Commissioner of Correction,
supra, 154 Conn. App. 697–700. As to the second claim, the Appellate Court
agreed with the habeas court, concluding that the petitioner had presented
no evidence regarding the extent to which Falk considered this issue, and
if he did, why he decided not to pursue it, and further concluding that, given
its conclusion that any error in handling the note during trial did not prejudice
the petitioner, it could not conclude that Falk was ineffective for failing to
raise the issue on appeal. Id., 722–24.