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.