Moye v. Commissioner of Correction

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JOHN MOYE v. COMMISSIONER OF CORRECTION
(AC 37234)
DiPentima, C. J., and Keller and Prescott, Js.
Argued April 11—officially released September 13, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
April E. Brodeur, assigned counsel, for the appel-
lant (petitioner).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, John Moye, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court abused its discretion
by denying his petition for certification to appeal, and
improperly (1) determined that his criminal trial coun-
sel had not provided ineffective assistance by failing to
request a sequestration order, (2) violated his right to
due process by failing to review all of the evidence
admitted at the habeas trial, and (3) refused to issue
a capias for an absentee witness.1 Having thoroughly
reviewed the record, we conclude that the habeas court
properly denied the petition for certification to appeal.
Accordingly, we dismiss the appeal.
The following facts, as set forth by this court on
direct appeal or as found by the habeas court, and
procedural history are relevant to this appeal. ‘‘On the
evening of April 30, 2005, after Clarence Jones, the
victim, asked him for a ride, Jerry Booker picked up
Jones, Roderick Coleman and the [petitioner]. The
group briefly stopped at Booker’s house in West Haven
and then proceeded to the Ebony Lounge in New Haven.
Coleman and the [petitioner] went inside for approxi-
mately fifteen minutes, while Booker and the victim
waited in the car. When Coleman and the [petitioner]
returned to the car, Coleman asked Booker to drive to
the Pleasant Moments Cafe in Bridgeport, where his
girlfriend worked as a dancer.
‘‘Upon arriving at Pleasant Moments Cafe, Booker,
Coleman and the victim entered the club while the
[petitioner] stayed in the car. The three men who went
inside the club were searched for weapons before they
were allowed to enter. When Pleasant Moments Cafe
closed for the night, Booker, Coleman and the victim
emerged from the club with Tamara Wilson, Coleman’s
girlfriend, Tawana Little and a third woman by the name
of Jada. They all got into Booker’s car. Booker was the
driver, the victim and Jada rode in the front passenger
seat, the [petitioner] sat behind Booker, Little was
seated next to him, and Wilson sat on Coleman’s lap
behind the front passenger’s seat.
‘‘Booker next drove to a nearby gasoline station.
Booker, the victim and Jada got out of the car and
entered the gasoline station. With the two men and Jada
out of the car, the [petitioner] began telling the other
passengers about his belief that Booker and the victim
planned to rob him. He said that he was going to ‘act
up.’ Those who went into the gasoline station returned
to the car, and the group left the gasoline station to
drop off Jada.
‘‘As Booker was driving to Jada’s house, his cellular
telephone rang. He answered the telephone and handed
it to the victim when he realized that it was the victim’s
mother calling. Then a loud bang came from the back-
seat. The victim’s mother heard someone say: ‘Call 911.
He’s been shot.’ The [petitioner], holding a gun, ordered
everyone to get out of the car. Booker and Jada got
out of the car, the [petitioner] got into the driver’s seat,
pushed the victim’s body out of the car and drove away.
‘‘After driving a short distance, the [petitioner]
stopped the car, wiped down the steering wheel and
car handles, and exited the car with Little, Wilson and
Coleman. The group got into a taxicab and went to
Little’s house in New Haven. Once at Little’s house, the
[petitioner] again told the others that he believed that
he was going to be robbed and that was why he shot
the victim. He told Little that he had tried to shoot the
victim in the face and also told Little and Wilson that
they should ‘take it to the grave.’
‘‘The [petitioner] was arrested on May 20, 2005. He
was found in a house in Stamford, lying across the
seats of several chairs under a dining room table. The
[petitioner] was charged with murder, carrying a pistol
without a permit and criminal possession of a pistol.
He was found guilty of murder and carrying a pistol
without a permit, and entered an Alford2 plea with
regard to the criminal possession of a pistol charge.’’
(Footnote added.) State v. Moye, 119 Conn. App. 143,
146–47, 986 A.2d 1134, cert. denied, 297 Conn. 907, 995
A.2d 638 (2010).
The petitioner appealed to this court from the judg-
ment of conviction. On direct appeal, ‘‘[he claimed]
that (1) there was insufficient evidence to support his
conviction of murder, (2) the [trial] court improperly
instructed the jury on the murder charge, (3) the prose-
cutor committed reversible impropriety during the
[petitioner’s] testimony and (4) the court improperly
canvassed the [petitioner] with regard to his Alford plea
to the charge of criminal possession of a pistol. We
[affirmed] the [petitioner’s] conviction of murder and
carrying a pistol without a permit. We reverse[d], how-
ever, [his] conviction of criminal possession of a pistol.’’
Id., 145–46.
Following this court’s decision on direct appeal, the
petitioner filed a petition for a writ of habeas corpus.
In his third amended petition, the petitioner claimed
that his trial counsel, Gary A. Mastronardi, rendered
ineffective assistance by failing (1) to request a seques-
tration order for witnesses, (2) to object to certain testi-
mony by the state’s firearms examiner, and (3) to file
a motion in limine to preclude testimony from the vic-
tim’s mother.3
In regard to his claim that Mastronardi rendered inef-
fective assistance by failing to request a sequestration
order, the petitioner alleged that if Mastronardi had
requested a sequestration order, the state’s witnesses,
specifically, the eyewitnesses to the shooting and the
victim’s mother, would not have been able to corrobo-
rate falsely each other’s testimony. According to the
petitioner, because Mastronardi did not request a
sequestration order that prohibited the state’s witnesses
from discussing their testimony, they were able to dis-
cuss and conform their testimony prior to testifying.
As proof that the state’s witnesses had discussed and
tailored their testimony, the petitioner emphasized the
testimony of Wilson, who, at the criminal trial, testified
that she had ‘‘just found out [that the victim] was on
the phone with his mother [at the time he was shot]. I
didn’t know that at the time . . . .’’ (Emphasis added.)
Subsequent to Wilson’s testimony at the criminal trial,
the victim’s mother testified that at the time that the
victim was shot, she was on the telephone with him.
According to the petitioner, the victim’s mother and
Wilson discussed their testimony prior to either testi-
fying in order to conform their testimony and, thus,
falsely corroborate each other, which would not have
occurred if Mastronardi had requested a sequestra-
tion order.
On July 28, 2014, the court, Fuger, J., held a habeas
trial, which lasted less than one full day. At the start of
the habeas trial, both parties offered and had admitted
without objection all of their exhibits. Following the
admission of both parties’ exhibits, the petitioner testi-
fied on his own behalf and then offered the testimony
of Mastronardi. After Mastronardi’s testimony, the peti-
tioner requested that the court issue a capias for Wilson,
who had not appeared at the habeas trial, although the
petitioner had attempted to subpoena her. The court
declined to do so. Both parties then rested and pro-
ceeded to make closing arguments. Immediately follow-
ing closing arguments, the court issued an oral decision
from the bench denying the petition.
The court began its oral decision, the transcript of
which it later signed and filed with the clerk of the
trial court,4 by stating that it had ‘‘read the petitioner’s
pretrial brief. I have not read all of the transcripts that
have been provided. I don’t know that it is necessary
to do so.’’ The court then determined, inter alia, that
the petitioner had not established that Mastronardi’s
failure to request a sequestration order constituted defi-
cient performance. The court also found that the peti-
tioner had failed to establish that he was prejudiced by
Mastronardi’s actions, in accordance with Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
On August 5, 2014, the petitioner sought certification
to appeal to this court, which the habeas court denied.
This appeal followed. Additional facts will be set forth
as necessary.
Prior to addressing the petitioner’s claims on appeal,
we set forth the applicable standard of review. ‘‘Faced
with a habeas court’s denial of a petition for certifica-
tion to appeal, a petitioner can obtain appellate review
of the dismissal of his petition for habeas corpus only
by satisfying the two-pronged test enunciated by our
Supreme Court in Simms v. Warden, 229 Conn. 178,
640 A.2d 601 (1994), and adopted in Simms v. Warden,
230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must
demonstrate that the denial of his petition for certifica-
tion constituted an abuse of discretion. . . . Second,
if the petitioner can show an abuse of discretion, he
must then prove that the decision of the habeas court
should be reversed on the merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Internal
quotation marks omitted.) Riddick v. Commissioner of
Correction, 113 Conn. App. 456, 459, 966 A.2d 762,
appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011).
‘‘In determining whether the habeas court abused its
discretion in denying the petitioner’s request for certifi-
cation, we necessarily must consider the merits of the
petitioner’s underlying claims to determine whether the
habeas court reasonably determined that the petition-
er’s appeal was frivolous.’’ (Internal quotation marks
omitted.) Taft v. Commissioner of Correction, 159
Conn. App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn.
910, 128 A.3d 954 (2015).
I
The petitioner first claims that the court improperly
determined that Mastronardi had not rendered ineffec-
tive assistance by failing to request a sequestration
order. Specifically, the petitioner alleges that Mastro-
nardi’s failure to request a sequestration order consti-
tuted deficient performance because his conduct was
not reasonable given the importance of eyewitness testi-
mony in this case. We are not persuaded.
The following additional facts and procedural history
are relevant to this claim. At the underlying criminal
trial, neither Mastronardi nor the state requested a
sequestration order. Wilson, who was in the vehicle
with the petitioner at the time that the victim was shot,
testified at the criminal trial. During cross-examination,
Mastronardi asked Wilson if the victim was on a cellular
phone at the time of the incident. Wilson responded:
‘‘From my knowledge, I just found out he was on the
phone with his mother. I didn’t know that at the time
cause he had drugs and I wasn’t all in his face. So, I
didn’t know what he was doing at that time. I just know
he was sitting there.’’ Mastronardi had Wilson’s entire
response stricken from the record as unresponsive, and
the jury was instructed to disregard Wilson’s statement.
The following colloquy then ensued between Wilson
and Mastronardi:
‘‘Q. You never told the police about [the victim] being
on a cell phone?
‘‘A. No. . . .
‘‘Q. You just told the jury a few minutes ago that you
found out that [the victim] was on a cell phone. Is that
right? . . . Yes or no.
‘‘A. Yes.
‘‘Q. And you found that out from [whom]? The pros-
ecutor?
‘‘A. No. I’d rather not say. It don’t matter.
‘‘Q. Well, somebody had to tell you something like
that? . . .
‘‘A. I’m not sure. I don’t remember.’’
Two days later, the victim’s mother testified at the
criminal trial. She testified that she was speaking to
her son on the telephone at the time he was shot. She
did not hear a gunshot, but she did hear someone say
that he had been shot and to call 911.
At the habeas trial, the petitioner argued that Mastro-
nardi should have requested a sequestration order
because the state’s case relied heavily on eyewitness
testimony. According to the petitioner, if Mastronardi
had requested such an order, the state’s witnesses
would not have been allowed to speak with each other
prior to testifying, and, therefore, Wilson never would
have learned that the victim was on the telephone with
his mother at the time he was shot. Because Wilson
heard and repeated this information to the jury, the
petitioner contended that she bolstered the credibility
of the testimony of the victim’s mother. The petitioner
further contended that if the state’s witnesses had tai-
lored their testimony regarding whether the victim was
on the telephone at the time he was shot, they may
have discussed and tailored their testimony concerning
other events.
In support of this claim, at the habeas trial, the peti-
tioner offered the testimony of Mastronardi. Mastro-
nardi could not recall whether he had any concerns
about the eyewitnesses overhearing or discussing out-
side of court each other’s testimony at the criminal trial.
He also had no recollection concerning why he did not
request a sequestration order in this case. Nor could
he recall whether any of the witnesses were present in
the courtroom prior to their own testimony. Mastro-
nardi did recall, however, that he had cross-examined
Wilson regarding from whom she had heard that the
victim was on the telephone with his mother at the
time he was shot, and that she did not have personal
knowledge of the victim being on the telephone with
his mother at the time of the shooting. Mastronardi
believed that he had discredited her testimony and pre-
sented to the jury that her testimony had been influ-
enced by other witnesses or the prosecutor.
The habeas court determined that Mastronardi’s per-
formance was not deficient, and, even if it was deficient,
the petitioner was not prejudiced by his actions: ‘‘[The
court does not] find that the failure to seek a sequestra-
tion order is in and of itself deficient performance on
the part of a trial defense counsel. . . . [Even] assum-
ing that that was deficient performance—and I’m not
making that finding; I’m assuming it for the purpose of
argument—I don’t see that it generated any prejudice
toward [the petitioner].’’
The following legal principles guide our analysis of
this claim. ‘‘In Strickland v. Washington, [supra, 466
U.S. 687], 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 requires the petitioner to
show (1) that counsel’s performance was deficient and
(2) that the deficient performance prejudiced the
defense. . . . Unless a [petitioner] makes both show-
ings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders
the result unreliable. . . .
‘‘To prove that his counsel’s performance was defi-
cient, the petitioner must demonstrate that trial coun-
sel’s representation fell below an objective standard of
reasonableness. . . . Competent representation is not
to be equated with perfection. The constitution guaran-
tees only a fair trial and a competent attorney; it does
not ensure that every conceivable constitutional claim
will be recognized and raised. . . . A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, 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. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.’’ (Citations
omitted; internal quotation marks omitted.) Toccaline
v. Commissioner of Correction, 80 Conn. App. 792,
798–99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845
A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543
U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).
Pursuant to General Statutes § 54-85a, ‘‘[i]n any crimi-
nal prosecution, the court, upon motion of the state or
the defendant, shall cause any witness to be sequestered
during the hearing on any issue or motion or any part
of the trial of such prosecution in which he is not testi-
fying.’’ ‘‘Either party may invoke the court’s authority
to issue a sequestration order during any portion of the
trial; the court lacks discretion to deny such a request.’’
State v. Morgan, 70 Conn. App. 255, 277, 797 A.2d 616,
cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). ‘‘[A]
sequestration order merely prohibits a sequestered wit-
ness from being in the courtroom when he is not testi-
fying.’’ State v. Williams, 169 Conn. 322, 331, 363 A.2d
72 (1975). ‘‘[A]t the request of counsel, the court, in its
discretion, [also may] order that the testimony of any
witness should not be discussed with any other past
or prospective witness.’’ (Internal quotation marks
omitted.) Id.
‘‘Sequestration serves a broad purpose. It is a proce-
dural device that serves to prevent witnesses from tai-
loring their testimony to that of earlier witnesses; it
aids in detecting testimony that is less than candid and
assures that witnesses testify on the basis of their own
knowledge. . . . In essence, it helps to ensure that the
trial is fair.’’ (Citations omitted.) State v. Robinson, 230
Conn. 591, 600, 646 A.2d 118 (1994).
In Toccaline v. Commissioner of Correction, supra,
80 Conn. App. 804,5 this court held that a defense coun-
sel’s decision whether to request a sequestration order
is a matter of trial strategy, and that under the facts of
the case, defense counsel’s trial strategy was reason-
able: ‘‘The uncontradicted testimony of [defense coun-
sel] was that the decision not to press for the
sequestration of witnesses reflected the consensus he
and the petitioner had reached . . . . [I]t is well estab-
lished that a habeas court cannot in hindsight second-
guess an attorney’s trial strategy. . . . The court
should not have found for the petitioner on that ground,
as the evidence adduced at the habeas hearing did not
overcome the strong presumption that counsel’s actions
represented sound trial strategy.’’ (Citation omitted.)
Id., 804–805.
In the present case, the petitioner bore the burden
of presenting sufficient evidence to establish that Mas-
tronardi’s actions constituted deficient performance.
See Morales v. Commissioner of Correction, 99 Conn.
App. 506, 509, 914 A.2d 602 (in habeas action, burden
of proof on petitioner), cert. denied, 282 Conn. 906, 920
A.2d 308 (2007). The record is silent regarding why
Mastronardi did not request a sequestration order. He
could not recall why he did not request that the wit-
nesses be sequestered. Thus, we do not know whether
Mastronardi made a conscious decision not to request
that the witnesses be sequestered. The decision, how-
ever, regarding whether to request a sequestration order
is a matter of trial strategy, and the petitioner has not
argued otherwise. Because the decision to request a
sequestration order is a matter of trial strategy, the
petitioner was required to demonstrate that Mastro-
nardi’s failure to request a sequestration order was
unreasonable in order to satisfy his burden of proof
and overcome the strong presumption that counsel’s
conduct regarding matters of trial strategy is rea-
sonable.6
This case is unlike Holloway v. Commissioner of
Correction, 145 Conn. App. 353, 367, 77 A.3d 777 (2013),
in which we held that certain failures by criminal trial
counsel, whether motivated by strategy or not, will
always constitute deficient performance in light of the
fundamental right at stake. In Holloway, this court held
that defense counsel’s failure to object to the trial
court’s jury instruction, which omitted an explanation
of an essential element of an offense with which the
petitioner had been charged, constituted deficient per-
formance because ‘‘[r]egardless of counsel’s particular
trial strategy on behalf of his client, he simply has no
excuse not to insist that the jury be properly instructed
on each essential element of every charged offense
. . . .’’ Id., 366–67. The right to sequestration of wit-
nesses, however, is not of such magnitude that a court
will presume that, in the words of Holloway, ‘‘there is
no conceivable tactical justification for defense coun-
sel’’ to decide to forgo the right. Id., 367. Indeed, in
any given case, there may well be valid and significant
strategic reasons to decide not to seek sequestration
of witnesses. See Toccaline v. Commissioner of Correc-
tion, supra, 80 Conn. App. 804–805.
Accordingly, the petitioner in this case was required
to establish that Mastronardi’s performance was defi-
cient by overcoming the presumption that counsel’s
conduct was reasonable. As the habeas court noted,
‘‘the quality of the evidence presented to [the habeas
court] in connection with this habeas corpus petition
[was] not very good as far as establishing the elements
that need to be established to grant the petition.’’ The
record contains no evidence from which the habeas
court or this court could determine whether Mastro-
nardi’s conduct was reasonable. It is true that, in Franko
v. Commissioner of Correction, 165 Conn. App. 505,
520, A.3d (2016), this court held that we ‘‘may
look to the record of the criminal trial as circumstantial
evidence of trial counsel’s strategy.’’ In Franko, defense
counsel did not testify at the habeas trial; id., 515; but
this court determined that his closing argument at the
criminal trial constituted evidence of his strategy for
not requesting a jury instruction on a lesser included
offense. Id., 517–18. The record in this case, however,
contains little or no circumstantial evidence from which
the habeas court could have divined Mastronardi’s rea-
son(s) to forgo sequestration or from which the habeas
court could have concluded that Mastronardi’s failure
to seek sequestration was simply negligence or inadver-
tence. On this record, we decline to speculate as to
why sequestration was not sought.
Absent any evidence regarding the basis for Mastro-
nardi’s failure to request a sequestration order, we are
guided by the ‘‘strong presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance . . . .’’ (Internal quotation marks
omitted.) Toccaline v. Commissioner of Correction,
supra, 80 Conn. App. 799. Because the petitioner failed
to adduce sufficient evidence at the habeas trial to
overcome this strong presumption and satisfy his bur-
den of proof, the court properly determined that he did
not establish that Mastronardi’s failure to request a
sequestration order constituted deficient performance.
Even if we assume for purposes of argument that
Mastronardi’s performance was deficient, we also con-
clude that the petitioner failed to establish that he was
prejudiced by Mastronardi’s failure to request seques-
tration. The petitioner argues that he was prejudiced
because prior to testifying, Wilson spoke to another
witness and learned information of which she had no
personal knowledge—that the victim had been on the
telephone with his mother when he was shot. Thus,
according to the petitioner, Wilson’s testimony falsely
bolstered the credibility of the testimony of the victim’s
mother. The petitioner also argues that if Wilson col-
luded with another witness, it is possible that other
witnesses colluded, and, therefore, it is impossible to
know which portions of the testimony from the state’s
witnesses were accurate. We are not persuaded.
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable. . . .
It is not enough for the [petitioner] to show that the
errors had some conceivable effect on the outcome of
the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Citation omitted; internal quotation marks
omitted.) Id.
The court properly determined that the petitioner had
not established that he was prejudiced by Mastronardi’s
conduct for two reasons. First, the only portion of the
criminal trial transcript that the petitioner relies on as
proof that the witnesses discussed and tailored their
testimony is Wilson’s testimony that she had learned
recently about the victim being on the telephone with
his mother at the time he was shot. This testimony,
however, was stricken from the record, and the jury
was instructed to disregard it. Unless proven otherwise,
this court will presume that the jury acted lawfully and
in accordance with the instructions given by the habeas
court. See State v. Santiago, 269 Conn. 726, 762, 850
A.2d 199 (2004) (‘‘[i]n the absence of a showing that
the jury failed or declined to follow the court’s instruc-
tions, we presume that it heeded them’’ [internal quota-
tion marks omitted]). Therefore, the petitioner has
failed to establish that any discussion between Wilson
and another witness, assuming that such a discussion
had occurred, prejudiced the outcome of his trial.
Second, the remaining argument set forth by the peti-
tioner concerning prejudice is grounded in mere specu-
lation. He contends that ‘‘[t]here is no telling what other
information may have shaped the testimony of wit-
nesses that would have been prevented by a sequestra-
tion order.’’ The petitioner does not, however, cite to
any portion of the criminal trial transcript or offer the
testimony of witnesses to establish that witnesses dis-
cussed their testimony with one another. ‘‘It is well
established that, in a claim of ineffective assistance
of counsel, [m]ere conjecture and speculation are not
enough to support a showing of prejudice.’’ (Internal
quotation marks omitted.) Elsey v. Commissioner of
Correction, 126 Conn. App. 144, 166, 10 A.3d 578, cert.
denied, 300 Conn. 922, 14 A.3d 1007 (2011). Accordingly,
the habeas court properly determined that the peti-
tioner had failed to establish prejudice.
In sum, the habeas court properly determined that the
petitioner did not establish that Mastronardi’s failure
to request a sequestration order constituted deficient
performance. On the basis of this record, this claim is
not debatable among jurists of reason, a court could
not resolve the issue in a different manner, and the
question does not deserve encouragement to proceed
further. Accordingly, we conclude that the court did
not abuse its discretion by denying the petition for
certification to appeal as to this claim.
II
The petitioner next claims that the court violated his
right to due process by rejecting his claims of ineffective
assistance of counsel without reviewing all of the exhib-
its admitted into evidence. Specifically, the petitioner
contends that the court could not have determined
whether he was prejudiced by Mastronardi’s actions,
which must be viewed in the context of the entire crimi-
nal trial, without reviewing all the transcripts from the
underlying criminal trial. See Strickland v. Washington,
supra, 466 U.S. 695 (‘‘[i]n making [the prejudice] deter-
mination, a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge
or jury’’).
The respondent, the Commissioner of Correction,
contends that this claim is unpreserved and that the
petitioner is not entitled to have it reviewed pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989); see In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015) (modifying third condition of Gold-
ing); because the claim is not constitutional in nature.
Alternatively, the respondent contends that even if this
claim is preserved or reviewable pursuant to Golding,
the court was not required to review every page of the
trial transcripts in order to evaluate and dispose of the
petitioner’s claims. Although we agree with the peti-
tioner that this claim is sufficiently preserved, we are
not persuaded that the court failed to consider the rele-
vant evidence in reaching its determination that the
petitioner did not establish that Mastronardi’s failure
to request a sequestration order constituted deficient
performance. Accordingly, we conclude that the court
did not abuse its discretion by denying the petition for
certification to appeal as to this claim.
As an initial matter, we address whether this claim
is preserved. The petitioner did not object to the court’s
statement that it did not read all of the transcripts,
which was made as part of the court’s oral decision.
The respondent argues that because the petitioner did
not object to this statement at the habeas trial, this claim
is not preserved. In response, the petitioner argues that
this claim is preserved because he was not required to
object to the statement and this claim was asserted in
his petition for certification to appeal. We agree with
the petitioner that he was not required to object to the
court’s statement, which was part of its oral decision,
in order to preserve this claim for appeal.
An oral decision is the equivalent of a written memo-
randum of decision. See Practice Book § 64-1. If the
court’s decision in this case had been written, rather
than oral, there would have been no opportunity for
the petitioner to voice an objection to the statement,
unless he did so in a motion seeking reconsideration
or reargument. We generally do not require such a pro-
cedure in order to preserve a claim of this nature for
appellate review. See State v. Paul B., 315 Conn. 19, 34
n.5, 105 A.3d 130 (2014) (defendant not required to
file motion for reconsideration to preserve claim that
appellate court in its written memorandum of decision
improperly construed his claim); see also Practice Book
§§ 61-10 (b) and 66-5; Solomon v. Aberman, 196 Conn.
359, 376, 493 A.2d 193 (1985) (although motion for artic-
ulation or rectification may be necessary to correct
ambiguous or incorrect statement in written memoran-
dum of decision, no requirement to do so in order to
preserve claim for appeal). We will not require a party
to take additional steps to preserve a claim simply
because the court’s decision was oral, not written. We
have found no authority, nor has the respondent cited
any, requiring that a litigant object to statements made
by a court while rendering an oral decision in order to
preserve a claim.
To hold otherwise would require a party to interrupt
the court while it rendered its oral decision every time
the court stated something with which a party did not
agree. Such a rule would be unwise and unwieldy.
Accordingly, the petitioner was not required to object
to the statement at issue in order to preserve this claim,
and, therefore, we conclude that this claim is preserved.
Having determined that this claim is preserved, the
following additional facts are relevant to our review.
Prior to the start of the habeas trial, the petitioner filed
a brief. In the portion of the pretrial brief regarding his
claim that Mastronardi rendered ineffective assistance
of counsel by failing to request a sequestration order,
the petitioner cited to the relevant portions of the under-
lying criminal trial transcript and to the written state-
ment that Wilson had given to the police. The petitioner
attached to his pretrial brief the cited portions of the
criminal trial transcript. Included in the attached por-
tions of the criminal trial transcript were Wilson’s testi-
mony that she recently had discovered that the victim
was on the telephone with his mother at the time he
was shot, Mastronardi’s cross-examination of Wilson
regarding this topic, and a portion of the testimony of
the victim’s mother. Also attached to the pretrial brief
was the written statement that Wilson had given to the
police following the shooting.
At the start of the habeas trial, both parties offered
and had admitted without objection all of their exhibits.
The petitioner offered and had admitted nineteen exhib-
its into evidence, eight of which were select portions7
of the transcript from the underlying criminal trial. Of
the nineteen exhibits that the petitioner offered into
evidence, only four of the exhibits had not been
attached to his pretrial brief: (1) the criminal trial tran-
script of closing argument, (2) the criminal trial tran-
script of the court’s instructions to the jury, (3) the
criminal trial transcript of the jury’s return of its verdict
and the petitioner’s subsequent Alford plea, and (4) the
sentencing transcript.
The respondent offered and had admitted into evi-
dence nine exhibits. The first five exhibits were the
transcripts from the five days of the criminal trial during
which evidence was presented to the jury. The sixth
exhibit was the criminal trial transcript of closing argu-
ment. The seventh exhibit was the criminal trial tran-
script of the court’s instructions to the jury. The eighth
exhibit was the criminal trial transcript of the jury’s
return of the verdict and the petitioner’s subsequent
Alford plea. The final exhibit was the sentencing tran-
script.
Following the admission of both parties’ exhibits, the
petitioner testified on his own behalf. After he finished
testifying, the petitioner informed the court that Mastro-
nardi was not available to testify until after 2 o’clock
in the afternoon. The court then stood in recess until
Mastronardi was present. After the recess, Mastronardi,
who was subpoenaed by the petitioner, testified. Both
parties then rested. Without any further recess, the par-
ties proceeded to make closing arguments.
Immediately following closing argument, the court
issued its oral decision: ‘‘I’m going to deny the petition
for a writ of habeas corpus. I’ve read the petitioner’s
pretrial brief. I have not read all of the transcripts that
have been provided. I don’t know that it is necessary
to do so. There have been references to those—to what
has taken place.
‘‘The first comment I would make is that the quality
of the evidence presented to this court in connection
with this habeas corpus petition is not very good as far
as establishing the elements that need to be established
to grant the petition. . . .
‘‘[T]he court finds that the overwhelming majority—
if not the entirety—of [the petitioner’s] testimony is not
worthy of much credit, which then leaves us with [the
testimony of Mastronardi], who . . . may have pro-
vided a little bit of insight into why he did what he did
during trial, adequately . . . [explained] his actions
during the trial.
‘‘Now, when I look specifically at the items that are
listed as the basis for a finding that [Mastronardi] was
ineffective, the first one is the failure to seek sequestra-
tion. I cannot find that the failure to seek a sequestration
order is in and of itself deficient performance on the
part of a trial defense counsel.
‘‘Apparently, by his testimony and the transcript,
[Mastronardi] did not seek a sequestration order. Now,
in this case, assuming that that was deficient perfor-
mance—and I’m not making that finding; I’m assuming
it for the purpose of argument—I don’t see that it gener-
ated any prejudice toward [the petitioner].’’ (Empha-
sis added.)
The following legal principles guide our review of
this claim. ‘‘[T]he trier [of fact] is bound to consider
all the evidence which has been admitted, as far as
admissible, for all the purposes for which it was offered
and claimed. . . . [W]e are not justified in finding error
upon pure assumptions as to what the court may have
done. . . . We cannot assume that the court’s conclu-
sions were reached without due weight having been
given to the evidence presented and the facts found.
. . . Unless the contrary appears, this court will assume
that the court acted properly.’’ (Citations omitted; inter-
nal quotation marks omitted.) Giamattei v. DiCerbo,
135 Conn. 159, 162, 62 A.2d 519 (1948); Riddick v. Com-
missioner of Correction, supra, 113 Conn. App. 465
(‘‘generally [a] judge is presumed to have performed
his duty properly unless the contrary appears’’ [internal
quotation marks omitted]). ‘‘[I]f . . . [a] statement [by
the court may] suggest that the court did not consider
[certain] testimony, we . . . are entitled to presume
that the trial court acted properly and considered all
the evidence. . . . There is, of course, no presumption
of error.’’ (Citations omitted.) Solomon v. Aberman,
supra, 196 Conn. 375–76.8
The issue of whether the habeas court must read
every word of the underlying criminal trial transcript
has been addressed previously by this court. In Evans
v. Warden, 29 Conn. App. 274, 276–77, 613 A.2d 327
(1992), the petitioner alleged that his criminal appellate
counsel rendered ineffective assistance by failing to
raise a sufficiency of the evidence claim on direct
appeal. At the habeas trial, the habeas court stated that
‘‘I really don’t think that I have any cause whatsoever
to review the transcripts [of the underlying criminal
trial],’’ and then denied the petition for a writ of habeas
corpus. Id., 276 n.1. On appeal, this court held that the
habeas court abused its discretion by failing to read
the trial transcript because ‘‘[a] full and fair review of
the petitioner’s claim that . . . appellate counsel pro-
vided ineffective assistance in failing to include a suffi-
ciency of the evidence claim in his direct appeal
required the habeas court to read the trial transcript.’’
Id., 278.
Since Evans, this court has clarified that Evans does
not stand for the proposition that ‘‘a new hearing is
[always] warranted [if] the habeas court does not review
all of the evidence. . . . Although we recognize that
the habeas court must consider all of the evidence
admitted for all the purposes it is offered and claimed
. . . we also recognize that the court is not obligated
to review evidence that is not relevant to any issue
under consideration.’’ (Citation omitted.) Hull v. War-
den, 32 Conn. App. 170, 177, 628 A.2d 32, cert. denied,
227 Conn. 920, 632 A.2d 691 (1993). Additionally,
‘‘[a]lthough a habeas court is obligated to give careful
consideration to all the evidence . . . it does not have
to read the full text of every exhibit.’’ (Citations omitted;
emphasis in original.) Id., 178.
In Hull, this court emphasized that the extent that
the criminal trial transcript must be reviewed by the
habeas court depends upon the nature and scope of
the particular claim of ineffective assistance of counsel.
The petitioner in Hull had alleged that his criminal trial
counsel rendered ineffective assistance by failing to
object to certain testimony. Id., 173. The habeas court
determined that trial counsel’s conduct was not defi-
cient, and, thus, did not reach the prejudice prong of
Strickland. Id., 174–75. The habeas court further stated
that it did not review certain exhibits admitted at the
habeas trial because it did not consider them necessary
to its decision. Id., 176–77.
On appeal, this court, in reaching its decision, distin-
guished between the claim at issue in Hull and the
claim at issue in Evans. In Evans, the petitioner’s
habeas claim had implicated the sufficiency of the evi-
dence presented at the criminal trial, which ‘‘require[s]
the reviewing court to construe all of the evidence pre-
sented at trial.’’ Id., 177. Thus, the habeas court’s refusal
to review any, let alone all, of the criminal trial tran-
script required a new hearing. By contrast, in Hull, ‘‘the
petitioner’s claims [were] exceedingly narrow in scope
and concerned solely with the testimony of [certain
witnesses]. This [was] particularly true because the
habeas court . . . concluded that . . . the petitioner’s
counsel was not ineffective for failing to object to [cer-
tain testimony, and, thus], had no need to proceed to
the second prong of the Strickland test concerning
the potentially broader issue of prejudice.’’ Id., 178.
Accordingly, this court concluded that the habeas court
did not abuse its discretion by not reviewing the entire
trial transcript because ‘‘the habeas court reviewed the
parties’ pretrial briefs, heard substantial testimony and
argument at the hearing, read the transcripts of [the
testimony of the witness at issue], and was properly
satisfied that . . . a review of the entire trial transcript
. . . would [not] have been of any additional bene-
fit.’’ Id.
Likewise, in Rivera v. Commissioner of Correction,
51 Conn. App. 336, 338, 721 A.2d 918 (1998), this court
held that the habeas court, in determining whether trial
counsel rendered ineffective assistance, did not abuse
its discretion by reading only the portions of the crimi-
nal trial transcript that counsel specifically referenced,
although the entire criminal trial transcript had been
admitted into evidence.9 In so doing, this court empha-
sized that the habeas court had reviewed the portions
of the criminal trial transcript that the petitioner identi-
fied at the habeas trial as relevant to his claims, and,
on appeal, the petitioner ‘‘was unable to articulate in
his brief or at oral argument any reason why the habeas
court was required to read the entire transcript in light
of his discrete, particularized claims of ineffective assis-
tance of counsel [none of which implicated the suffi-
ciency of the evidence admitted at the criminal
trial].’’ Id.
In the present case, the petitioner claims that Mastro-
nardi rendered ineffective assistance by failing to
request a sequestration order. In deciding this claim,
as Hull and Rivera make clear, the extent to which the
court was required to review the criminal trial transcript
in this case was dependent upon the particular claim
made and on which prong of Strickland the court based
its determination. The petitioner’s claim, unlike the
claim in Evans, does not implicate the sufficiency of
the evidence admitted at the underlying criminal trial;
rather, his claim focuses on the testimony of particular
witnesses. Additionally, similar to Hull, the habeas
court found that the petitioner had failed to establish
that Mastronardi’s performance was deficient. Although
the habeas court did address the prejudice prong, it
was not required to do so, and, thus, it was not required
to review the entire criminal trial transcript.10 See Hull
v. Warden, supra, 32 Conn. App. 177.
Additionally, in deciding this claim, it is important to
note that the habeas court did not state, as occurred
in Evans, that it had not reviewed any of the criminal
trial transcripts, but, rather, stated that it did not read
all of the transcripts provided. It is unclear from that
statement which portions of the criminal trial transcript
the court did read. As a result, we must presume that
the court acted properly and decline to interpret the
court’s statement to mean that it did not review all the
relevant transcripts. Such a presumption is particularly
apt in light of the petitioner’s pretrial brief specifying
which portions of the criminal trial transcript were rele-
vant and the admission into evidence of irrelevant por-
tions of the transcript, such as the transcripts of the
jury’s return of the verdict and the sentencing.
Moreover, the habeas court did state that it had
reviewed the petitioner’s pretrial brief. In his pretrial
brief, the petitioner referred the court to specific, rele-
vant portions of the criminal trial transcript, which he
attached to the pretrial brief. The portions of the crimi-
nal trial transcript attached to the pretrial brief were
contained in the transcripts that the court subsequently
admitted into evidence at the habeas trial. Although the
petitioner also offered and had admitted four other
portions of the criminal trial transcript at the habeas
trial, he has not articulated what significance these por-
tions have to his particularized claim of ineffective
assistance of counsel. To the extent that the habeas
court did not review all the portions of the criminal
trial transcript admitted into evidence at the habeas
trial by the parties, the petitioner has failed to explain
why the habeas court was required to read the entire
transcript in light of his particular claim of deficient
performance. Absent the petitioner identifying those
portions of the transcript that (1) would have altered
the court’s determination and (2) the court failed to
read, this court is guided by the presumption that the
habeas court acted properly and considered all the rele-
vant evidence. See Solomon v. Aberman, supra, 196
Conn. 376.
In rejecting the petitioner’s claim, we caution habeas
courts to avoid making ambiguous statements, like the
one made by the court here. ‘‘A [trier of fact] is bound
to consider all the evidence which has been admitted,
as far as admissible, for all the purposes for which it
was offered and claimed. . . . [This principle is] fully
applicable in habeas corpus trials.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
Evans v. Warden, supra, 29 Conn. App. 277. ‘‘Just as a
jury should give careful consideration to all the evi-
dence in a case, so too should a habeas court give
careful consideration to all the evidence . . . .’’ (Cita-
tion omitted.) Id., 278. If a habeas court concludes that
it is not necessary to review certain exhibits in light of
the manner in which it has disposed of the claims, it
should endeavor to explain what it has not reviewed
and why it is not necessary to do so. A court should
strive to avoid leaving litigants with the impression that
it has failed to discharge its duty or somehow acted
unlawfully. Public confidence in our justice system is
undermined if parties perceive that a court has not met
its obligation to provide them with a full and fair review
of their claims. We caution courts not to abrogate their
duty to review the evidence admitted at trial or to give
litigants the erroneous impression that they have
done so.
In sum, we are not persuaded that the habeas court
failed to consider all of the evidence pertaining to the
issue of whether Mastronardi’s failure to request a
sequestration order constituted deficient performance.
Because we are convinced on this record, and in light
of the particular manner in which the court disposed
of the petitioner’s claim, that this claim is not debatable
among jurists of reason, a court could not resolve the
issue in a different manner, and the question does not
deserve encouragement to proceed further, we con-
clude that the habeas court did not abuse its discretion
by denying certification to appeal as to this claim.
III
Finally, the petitioner claims that the court improp-
erly refused to issue a capias for a witness who failed
to appear to testify at the habeas trial. Specifically, the
petitioner contends that the court improperly deter-
mined that it did not have the authority to issue a capias
for the witness because the subpoena issued by the
petitioner failed to conform to the statutory require-
ments of General Statutes § 52-143.11 In response, the
respondent argues that the court correctly determined
that it could not issue a capias for the missing witness
because the subpoena (1) was not personally served
on her and was simply left at her abode, and (2) did
not include either statutorily required language or pay-
ment of the witness fee. On the record before us, we
are not persuaded by the petitioner’s claim.
The following additional facts and procedural history
are relevant to this claim. Prior to the start of the habeas
trial, the petitioner sought to subpoena Wilson to offer
testimony related to his claim that Mastronardi pro-
vided ineffective assistance of counsel by failing to ask
the criminal trial court for an order of sequestration.
The subpoena commanded that Wilson appear in court
on the date of the habeas trial. The subpoena further
notified Wilson that should she not appear in court on
the day and at the time stated, ‘‘the court may order
that you be arrested. Also, if one day’s attendance and
traveling fees have been paid to you and you do not
come to court and testify, without reasonable excuse,
you will be fined not more than [$25] . . . .’’ The sub-
poena was not accompanied by payment for attendance
and travel expenses.
On July 24, 2014, a person indifferent to the action
was given the subpoena to serve it on Wilson. Such
person left the subpoena at Wilson’s last usual place of
abode, but did not make personal contact with Wilson.
Thus, the subpoena was not left in Wilson’s physical
presence, nor was its contents read aloud to her. Wilson
subsequently failed to appear in court in response to
the subpoena.
At the habeas trial, after offering the testimony of
the petitioner and Mastronardi, the petitioner’s counsel
stated that the only further evidence she had was the
testimony of Wilson, who had failed to appear. The
petitioner requested that the court issue a capias in
accordance with § 52-143 (e). The respondent objected,
arguing that for a capias warrant to issue, in-hand ser-
vice of the subpoena was required. The petitioner
responded that in-hand service was not necessary
because he could establish that Wilson had actual notice
of the subpoena through a copy of an electronic voice
mail from Wilson acknowledging that ‘‘she [had]
received [the subpoena], and she knows she needs to
be in court.’’ The petitioner did not request that an
audio recording of the voice mail be marked for identifi-
cation in order to make it part of the record on appeal.12
The court also noted that the petitioner had failed to
tender travel and witness fees or to include statutorily
required language in the subpoena. The court concluded
that it was not authorized to issue a capias.
‘‘The issuance of a capias is not mandatory, and lies
within the discretion of the trial court. . . . If, how-
ever, a witness is not warranted in refusing to honor a
subpoena and his absence will cause a miscarriage of
justice, the court should issue a capias. . . . [If, how-
ever] the court never exercised any discretion because
it believed its authority to do so was lacking [our review
is plenary]. It is clear that the court [has] the power, if
the witness had actually been served [properly with the
subpoena] and refused to appear, to issue a capias.’’
(Citations omitted.) State v. Burrows, 5 Conn. App. 556,
558–59, 500 A.2d 970 (1985), cert. denied, 199 Conn.
806, 508 A.2d 33 (1986); see State v. Maldonado, 193
Conn. 350, 360 n.6, 478 A.2d 581 (1984) (‘‘[u]pon proof
that a witness has been served with notice to appear,
the trial court has authority to issue a capias to compel
his or her attendance’’); Housing Authority v. DeRoche,
112 Conn. App. 355, 371 n.9, 962 A.2d 904 (2009) (same).
Section 52-143 (e) sets forth, in relevant part, the
requirements that must be met for the court to be
authorized to issue a capias: ‘‘[I]f any other person upon
whom a subpoena is served to appear and testify in a
cause pending before any court . . . fails to appear
and testify, without reasonable excuse, he shall be fined
. . . and the court or judge, on proof of the service of
a subpoena . . . and the tender of such fees, may issue
a capias directed to some proper officer to arrest the
witness and bring him before the court to testify.’’
(Emphasis added.)
Section 52-143 (e) does not, by its terms, require in-
hand service of the subpoena. This court has interpreted
the phrase ‘‘person upon whom a subpoena is served’’
to ‘‘not require physical acceptance of [the subpoena],
if the person is given notice of it and its contents.’’
(Emphasis added.) State v. Burrows, supra, 5 Conn.
App. 559. Thus, abode service of the subpoena autho-
rizes the court to issue a capias only if the party
requesting the capias establishes that the absentee wit-
ness received the subpoena and knows of the contents
of the subpoena. See State v. Frye, 182 Conn. 476, 483,
438 A.2d 735 (1980) (leaving subpoena with witness’
wife at his abode without proof that witness knew con-
tents of subpoena, although he confirmed by telephone
that he had received it, was not adequate service under
§ 52-143).
To the extent that this court must examine the record
to determine whether the habeas court properly found
that an absentee witness was not served properly, ‘‘[t]he
duty to provide this court with a record adequate for
review rests with the appellant. . . . Conclusions of
the trial court cannot be reviewed where the appellant
fails to establish through an adequate record that the
trial court incorrectly applied the law or could not rea-
sonably have concluded as it did . . . .’’ (Internal quo-
tation marks omitted.) Finan v. Finan, 287 Conn. 491,
495, 949 A.2d 468 (2008).
A party may establish an adequate record for appeal
by making an offer of proof or marking an exhibit for
identification. ‘‘As a general matter, a trial court should
always allow a party to make an offer of proof and
mark an item as an exhibit for identification, for both
practices generally are necessary to preserving the trial
record for appellate review. . . . [I]f necessary [to
properly preserve a claim for appellate review], the
appellant . . . must make an offer of proof or offer
an exhibit for identification . . . .’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Filippelli v. Saint Mary’s Hospital, 319 Conn. 113, 150–
51, 124 A.3d 501 (2015); see Finan v. Finan, supra, 287
Conn. 495 (‘‘[t]he purpose of marking an exhibit for
identification is to preserve it as part of the record and
to provide an appellate court with a basis for review’’
[internal quotation marks omitted]).
A proper offer of proof requires the proffering party
to disclose on the record the substance of the proffered
evidence. State v. Conrod, 198 Conn. 592, 597, 504 A.2d
494 (1986). The court will not speculate as to the possi-
ble substance of excluded evidence in the absence of
a proper offer of proof. Id., 598. Such an offer may be
made by (1) presenting the substance of the evidence
or testimony to the court outside the presence of the
jury or (2) a good faith representation by counsel as to
the contents of the evidence or testimony. See State
v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995).
Additionally, the record independently may be adequate
to establish the substance of the exhibit, if its content
is read into the record. Filippelli v. Saint Mary’s Hospi-
tal, supra, 319 Conn. 151.
In the present case, the petitioner failed to make a
sufficient offer of proof that Wilson received the sub-
poena and knew its contents. The petitioner could have
made a proper offer of proof in two ways: (1) he could
have had a copy of the voice mail marked for identifica-
tion or (2) he could have described the voice mail’s
contents adequately to make clear that it established
that Wilson had actual notice of its content. The peti-
tioner’s counsel did not have a copy of the voice mail
marked as an exhibit for identification, and her descrip-
tion of its content was so vague that it failed to establish
that Wilson had actual notice of the subpoena’s content.
Although the petitioner’s counsel stated that the voice
mail established that Wilson received the subpoena and
knew that she needed to be in court, counsel did not
state whether the voice mail established that Wilson
knew the particular contents of the subpoena, such as
the date and time that she was required to appear in
court. The petitioner’s counsel admitted at oral argu-
ment to this court that her description of the voice
mail’s content was minimal. Without including a copy
of the voice mail as part of the record or describing
the voice mail’s contents in sufficient detail, we only
can speculate as to the contents of the voice mail, which
we will not do. See Daigle v. Metropolitan Property &
Casualty Ins. Co., 257 Conn. 359, 364–65, 777 A.2d 681
(2001) (‘‘[The role of an appellate court] is not to divine
the possibilities, but to review the claims and exhibits
presented to the trial court. In the present case, the
record is deficient [because] we are left to speculate as
to the factual predicates for [the plaintiff’s] argument.’’).
Accordingly, the record is insufficient to review
whether Wilson properly was served and whether the
court improperly declined to issue a capias. Thus, the
claim is not debatable among jurists of reason, a court
could not resolve the issue in a different manner, and
the question does not deserve encouragement to pro-
ceed further. The court did not abuse its discretion by
denying the petition for certification to appeal as to
this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
For ease of discussion, we have addressed the petitioner’s claims in a
different order than presented in his brief on appeal.
2
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
In this appeal, the petitioner does not challenge the habeas court’s deter-
mination that he had not established ineffective assistance of counsel with
respect to his claims that Mastronardi failed to object to certain testimony
by the state’s firearms examiner, and to file a motion in limine to preclude
testimony from the victim’s mother. Accordingly, we deem any such
claims abandoned.
4
Practice Book § 64-1 (a) provides in relevant part: ‘‘The trial court shall
state its decision either orally or in writing . . . . If oral, the decision shall
be recorded by a court reporter, and, if there is an appeal, the trial court
shall create a memorandum of decision for use in the appeal by ordering
a transcript of the portion of the proceedings in which it stated its oral
decision. The transcript of the decision shall be signed by the trial judge
and filed with the clerk of the trial court. . . .’’
5
In Toccaline, the petitioner claimed that his criminal defense counsel
had rendered ineffective assistance by failing to request a sequestration
order. ‘‘At the criminal trial, [defense counsel] moved to sequester all the
witnesses prior to the beginning of evidence with the exception of the
petitioner’s wife. In response, the trial court indicated that if a sequestration
order were to be granted, it would include all potential witnesses, including
the petitioner’s wife. Confronted with those alternatives, [defense counsel]
and the petitioner conferred and mutually decided not to pursue the seques-
tration motion so that the petitioner’s wife could be present at the trial.’’
(Footnote omitted.) Toccaline v. Commissioner of Correction, supra, 80
Conn. App. 804.
6
After conducting a nationwide search, we have failed to find a single
case in which a court has determined that defense counsel’s failure to
request a sequestration order constituted deficient performance. See, e.g.,
Cannon v. Mullin, 383 F.3d 1152, 1166 (10th Cir. 2004) (failure to request
sequestration order did not constitute deficient performance), cert. denied,
544 U.S. 928, 125 S. Ct. 1664, 161 L. Ed. 2d 491 (2005); State v. Scott, 829
S.W.2d 120, 123 (Mo. App. 1992) (same); Garcia v. State, 678 N.W.2d 568,
573–74 (N.D. 2004) (same).
7
The exhibits included (1) the transcript of closing argument, (2) the
transcript of the court’s instructions to the jury, (3) the transcript of the
jury’s return of its verdict and the petitioner’s plea under North Carolina
v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), (4) the
transcript of the sentencing, (5) a two page excerpt of the transcript of
Booker’s testimony, (6) a nine page excerpt from the transcript of Wilson’s
testimony, (7) an eight page excerpt from the transcript of an expert witness’
testimony concerning firearms, and (8) a thirty-two page excerpt from the
transcript of the testimony of the victim’s mother.
8
In Solomon v. Aberman, supra, 196 Conn. 375, the trial court in its
memorandum of decision stated that only two trustees testified at trial,
although four trustees actually had testified. The petitioners also had offered
and had admitted a portion of the deposition testimony of a fifth trustee.
Id., 375–76 and 376 n.13. On appeal, our Supreme Court stated that it would
not presume that the trial court had not considered all of the relevant
evidence on the basis of the trial court’s statement, especially in light of
the strong presumption that the court acted properly. Id., 375–76.
9
We note that Evans, Hull, and Rivera were not cited by either the
petitioner or the respondent in their appellate briefs.
10
Even if the habeas court had relied solely on the prejudice prong, it
was not required to review every word of the criminal trial transcript. The
criminal trial court struck from the record, and instructed the jury to ignore,
Wilson’s testimony that she recently had learned that the victim was on
the telephone with his mother at the time of the shooting. Additionally,
Mastronardi later cross-examined Wilson on this topic. The habeas court
was aware of these facts because they were included in the portions of the
criminal trial transcript attached to the petitioner’s pretrial brief, which the
habeas court read. Accordingly, the habeas court was not required to review
the remainder of the criminal trial transcript because the portions of the
transcript that the habeas court did read established that any harm caused
by Mastronardi’s conduct was cured by the trial court’s instructions to the
jury and Mastronardi’s cross-examination of Wilson.
11
General Statutes § 52-143 provides in relevant part: ‘‘(a) Subpoenas for
witnesses shall be signed by the clerk of the court or a commissioner of
the Superior Court and shall be served by an officer, [or] indifferent person
. . . . The subpoena shall be served not less than eighteen hours prior to
the time designated for the person summoned to appear, unless the court
orders otherwise. . . .
(e) If any person summoned by the state, or by the Attorney General or
an assistant attorney general, or by any public defender or assistant public
defender acting in his official capacity, by a subpoena containing the state-
ment as provided in subsection (d) of this section, or if any other person
upon whom a subpoena is served to appear and testify in a cause pending
before any court and to whom one day’s attendance and fees for traveling
to court have been tendered, fails to appear and testify, without reasonable
excuse, he shall be fined not more than twenty-five dollars and pay all
damages to the party aggrieved; and the court or judge, on proof of the
service of a subpoena containing the statement as provided in subsection
(d) of this section, or on proof of the service of a subpoena and the tender
of such fees, may issue a capias directed to some proper officer to arrest
the witness and bring him before the court to testify. . . .’’
12
We note that the petitioner alleged during oral argument to this court
that the habeas court refused to listen to the voice mail on two occasions.
The record, however, does not support this contention. The petitioner never
requested that the habeas court listen to the voice mail or that it mark
the voice mail as an exhibit. Furthermore, the petitioner admitted at oral
argument to this court that his habeas counsel did not discuss the contents
of the voice mail in any depth at the habeas trial.