Taylor v. Commissioner of Correction

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DEVON TAYLOR v. COMMISSIONER

OF CORRECTION

(SC 19462)

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

Argued November 14, 2016—officially released February 14, 2017

Peter Tsimbidaros, assigned counsel, for the appel-

lant (petitioner).

Lisa A. Riggione, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, James A. Killen, senior assistant state’s attor-

ney, and Marcia Pillsbury, assistant state’s attorney,

for the appellee (respondent).

Opinion

EVELEIGH, J. In this certified appeal, the petitioner,

Devon Taylor, appeals from the judgment of the Appel-

late Court affirming the denial of his amended writ of

habeas corpus. See Taylor v. Commissioner of Correc-

tion, 154 Conn. App. 686, 688–89, 108 A.3d 238 (2015).

On appeal, the petitioner claims that the Appellate

Court incorrectly concluded that he had failed to meet

his burden of demonstrating that the deficient perfor-

mance of his trial counsel, Kenneth Simon, in

responding to the trial court’s treatment of a jury note

had prejudiced the petitioner. Id., 721. We disagree with

the petitioner and, accordingly, affirm the judgment of

the Appellate Court.

The Appellate Court opinion sets forth the following

relevant facts and procedural history. ‘‘On August 27,

1993, [Jay Murray, the victim] and Ronald Wightwood,

[Murray’s] companion, were attempting to purchase

drugs [in Hartford]. They met the [petitioner] and indi-

cated to him that they wanted cocaine. The [petitioner]

and the victim discussed the purchase and the [peti-

tioner] entered the victim’s pickup truck and drove it

to the vicinity of a car wash on Albany Avenue. The

[petitioner] exited the truck and retrieved a plastic bag

containing a white powdery substance, which he gave

to the victim. After the victim sampled and rejected

the substance, the [petitioner] drove the truck and its

occupants to Milford Street. The [petitioner] left the

truck but returned several minutes later and shot the

victim with a revolver through the driver’s side window

of the truck. All of those events occurred in the presence

of Wightwood. The police found $150 in the truck and

also found the [petitioner’s] fingerprints on the exterior

and interior of the truck. . . . The victim later died in

a hospital.

‘‘The petitioner was charged with murder in violation

of General Statutes [Rev. to 1993] § 53a-54a and criminal

possession of a firearm in violation of General Statutes

[Rev. to 1993] § 53a-217. In 1997, a jury found the peti-

tioner guilty on both charges. The trial court . . . sen-

tenced the petitioner to a total effective term of sixty

years imprisonment. [The Appellate Court] affirmed the

judgment of conviction on appeal. [State v. Taylor, 52

Conn. App. 790, 801, 729 A.2d 226 (1999)].

‘‘Subsequently, the petitioner filed an amended peti-

tion for a writ of habeas corpus . . . . The amended

petition contains four counts. Count one alleges that

. . . Simon . . . provided ineffective assistance of

counsel on the grounds that, inter alia, [he] failed (1)

to introduce evidence to impeach the state’s primary

identification witness, Wightwood, (2) to adequately

seek to suppress Wightwood’s allegedly suggestive

identification of the petitioner . . . (3) to investigate

and introduce evidence to establish a third party culpa-

bility defense, (4) to impeach the expert opinion testi-

mony of Kenneth Zercie, an employee at the state

forensic laboratory, concerning fingerprint evidence,

and (5) to object to the trial court’s errors in its handling

of a jury note. Count two broadly alleges that Glenn

W. Falk, the petitioner’s appellate counsel, provided

ineffective assistance of counsel. Count three alleges

that the trial court violated the petitioner’s constitu-

tional rights by providing an erroneous charge to the

jury regarding the definition of the intent element of

murder. Count four broadly and vaguely alleges that

the petitioner’s incarceration violates his . . . rights

under the fifth and fourteenth amendments to the

[United States] constitution and article first, § 8, of the

Connecticut constitution. The respondent, the Commis-

sioner of Correction, filed a return denying the petition-

er’s allegations in the amended petition and raising the

special defense of procedural default with regard to the

petitioner’s claim in count three as to the trial court’s

instruction on the intent element of murder. The peti-

tioner filed a reply denying the respondent’s procedural

default defense. Both parties then filed pretrial briefs.

‘‘Following a trial to the [habeas] court, both parties

filed posttrial briefs. Approximately seven months after

the parties filed their posttrial briefs, the [habeas] court

held a hearing wherein the parties appeared on the

record and discussed some of the issues raised before

the [habeas] court. In particular, the [habeas] court and

the parties discussed the petitioner’s claims pertaining

to the trial court’s handling of the jury note. The

[habeas] court then permitted the parties to provide

supplemental briefs regarding those claims, which both

parties submitted a few weeks thereafter.

‘‘The [habeas] court . . . subsequently issued a

memorandum of decision denying the petition. First,

the [habeas] court concluded that Simon did not render

ineffective assistance of counsel, rejecting multiple alle-

gations underlying the petitioner’s claim. Second, the

[habeas] court concluded that Falk did not provide inef-

fective assistance of counsel. Third, the [habeas] court

concluded that the petitioner’s claim that the trial court

committed constitutional error in its charge to the jury

regarding the intent element of murder was procedur-

ally defaulted and, in any event, meritless because the

charge was correct and not misleading. Fourth, the

[habeas] court concluded that the petitioner’s claim

that the trial court committed constitutional error in

its handling of the jury note was both procedurally

defaulted and not raised properly before the habeas

court. Nonetheless, the [habeas] court considered the

claim on its merits, concluding that the trial court’s

errors did not prejudice the petitioner and were, there-

fore, harmless. Finally, the [habeas] court rejected the

petitioner’s broad claim in count four that his incarcera-

tion violated his constitutional rights, citing its conclu-

sions that the petitioner did not prove any of his

allegations in counts one, two, or three of his

amended petition.

‘‘The petitioner filed a petition for certification to

appeal from the [habeas] court’s judgment [to the Appel-

late Court], which [was] granted. Before filing his appeal

with [the Appellate Court], the petitioner filed a motion

for reconsideration, which the habeas court denied. The

petitioner then filed a motion for rectification, arguing

that the habeas court improperly failed to use a struc-

tural error analysis to determine whether the trial court

had violated his constitutional rights. The habeas court

denied his motion.’’ (Citations omitted; footnotes omit-

ted; internal quotation marks omitted.) Taylor v. Com-

missioner of Correction, supra, 154 Conn. App. 689–92.

On appeal to the Appellate Court, the petitioner

claimed, inter alia, ‘‘that the [habeas] court erroneously

concluded that . . . [Simon] did not render ineffective

assistance of counsel for his failure to . . . object to

the trial court’s errors in its handling of a jury note.’’ Id.,

688. The Appellate Court rejected this claim, concluding

that ‘‘[b]oth the petitioner and the habeas court agree

that Simon’s performance in relation to the jury note

was deficient. His deficient performance did not, how-

ever, prejudice the petitioner.’’ Id., 720. The Appellate

Court further concluded that ‘‘we agree with the

[habeas] court that this is not one of the rare instances

wherein a petitioner need not prove prejudice to estab-

lish an ineffective assistance of counsel claim. . . . We

are not persuaded that the circumstances of this case

require us to remove from the petitioner the burden to

prove prejudice.’’ (Citations omitted; footnote omitted.)

Id., 721–22. Thereafter, the petitioner filed a petition for

certification to appeal to this court, which was granted.1

On appeal to this court, the petitioner claims that the

Appellate Court incorrectly affirmed the judgment of

the habeas court denying his petition. Specifically, the

petitioner asserts that the Appellate Court incorrectly

required him to demonstrate prejudice from Simon’s

handling of the jury note during trial.

We begin by setting forth the legal principles and

standard of review applicable to the petitioner’s appeal.

‘‘The habeas judge, as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight to

be given to their testimony.’’ (Internal quotation marks

omitted.) Taylor v. Commissioner of Correction, 284

Conn. 433, 448, 936 A.2d 611 (2007). The application of

historical facts to questions of law that is necessary

to determine whether the petitioner has demonstrated

prejudice under Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), however, is

a mixed question of law and fact subject to our plenary

review. See, e.g., Copas v. Commissioner of Correction,

234 Conn. 139, 152–53, 662 A.2d 718 (1995).

‘‘As enunciated in Strickland . . . [a] claim of inef-

fective assistance of counsel consists of two compo-

nents: a performance prong and a prejudice prong. To

satisfy the performance prong . . . the petitioner must

demonstrate that his attorney’s representation was not

reasonably competent or within the range of compe-

tence displayed by lawyers with ordinary training and

skill in the criminal law. . . . To satisfy the prejudice

prong, a claimant must demonstrate that there is a rea-

sonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have

been different.’’ (Internal quotation marks omitted.)

Fernandez v. Commissioner of Correction, 291 Conn.

830, 838, 970 A.2d 721 (2009). A court can find against

a petitioner, with respect to a claim of ineffective assis-

tance of counsel on either the performance prong or

the prejudice prong, whichever is easier. Washington

v. Commissioner of Correction, 287 Conn. 792, 852–53,

950 A.2d 1220 (2008).

The following additional facts, as found by the habeas

court, are relevant to the present appeal. ‘‘On the third

day of deliberations, the trial court received a jury note

signed by the foreperson.2 The note read:

‘‘ ‘Judge Barry—I have polled the jury [four] times

after various deliberations and discussions. Votes were

as follows on the charge of murder:

‘‘ ‘10-8-97 4G 5NG 3 undecided

‘‘ ‘10-9-97 6G 5NG 1 undecided

‘‘ ‘10-9-97 7G 5NG

‘‘ ‘10-10-97 7G 5NG

‘‘ ‘I started discussion this [morning] with a proposal

to compromise—that is, that we would find [the peti-

tioner] not guilty on murder and move to convict on a

lesser charge. This proposal was rejected by [four]

jurors.

‘‘ ‘Deliberations continued and a [fourth] vote was

taken.

‘‘ ‘Next steps??’ ’’

‘‘The court had the following exchange with the fore-

person after receiving the note:

‘‘ ‘The Court: . . . Let me ask you . . . am I correct,

having read your note—would I be correct to state that

the jury is in disagreement as to a verdict of guilty or

not guilty regarding the first count of murder?

‘‘ ‘The Foreperson: Yes, Your Honor. And, therefore,

we never got to the second count.

‘‘ ‘The Court: I understand. I believe that you have

deliberated for a total of somewhere around four hours

or approximately a little more. And I may be wrong

about that. But both yesterday and today and for a total

of four to five hours, I believe, but I’m not certain. In

any event, I believe more deliberations are necessary.

I want to remind you that you have to deal with count

one as charged first, that is the charge of murder, and

reach a unanimous decision of guilt or [innocence] as

to that charge, if you possibly can. If your unanimous

verdict is guilty, you will move on to count two. If your

unanimous verdict on murder in the first count is not

guilty, then and only then will you consider lesser

included offenses of murder as I instructed you. And

then, after having done that, you would move on to

count two.

‘‘ ‘If you remain in disagreement on the charge of

murder after further deliberations, let us know in the

same manner with simply a note to the effect that you

are in disagreement on the first count, and we will bring

you back into court for further instructions.’

‘‘After the jury left the courtroom, the court marked

the note as a court exhibit and sealed it. The court

stated that a verbatim recitation of the note’s contents

was not placed into the record or revealed to counsel,

but that counsel knew that the jury was in disagreement

about reaching a unanimous verdict on the murder

charge and was seeking advice on how to proceed.

Counsel did not object to the trial court’s decision to

seal the note or its instruction to the jury following

receipt of the note. The note was unsealed for the first

time during the habeas trial. . . .

‘‘The [habeas] court first concluded that Simon’s per-

formance was deficient in regard to the jury note. The

[habeas] court found that the trial court failed to follow

Practice Book § 42-49, which required a court to articu-

late its reasoning on the record if it decided to seal any

portion of the court’s file. The [habeas] court further

found that, in any event, a trial court could not prevent

a defendant from viewing the contents of a jury note.

In addition, the court noted that Practice Book § 42-7

required a court to provide notice and a ‘reasonable

opportunity to be present’ to parties before communi-

cating with jurors on any aspect of a case. The [habeas]

court determined that the trial court failed to follow

these procedures.

‘‘Furthermore, the [habeas] court found the following

regarding Simon’s performance. Simon did not request,

on the record, to see the note; Simon did not object

to the [trial] court’s handling of the note; reasonably

competent trial counsel would have known the law, as

it existed at the time of the petitioner’s trial, concerning

jury notes; reasonably competent counsel would have

been aware of his or her client’s rights to view a jury

note and respond to it; there was no strategic or tactical

reason not to request, on the record, to view the note;

there was no strategic or tactical reason not to object

to the court’s handling of the note; and any off-the-

record discussion by Simon with the trial court judge

about the note, if it occurred, did not constitute a suffi-

cient substitute for discussing the note on the record.

On the basis of these findings, the [habeas] court con-

cluded that Simon’s performance was deficient as it

related to the trial court’s handling of the note.

‘‘The [habeas] court proceeded to conclude that

Simon’s deficient performance, as it related to the jury

note, did not prejudice the petitioner.’’ (Footnotes

altered.) Taylor v. Commissioner of Correction, supra,

154 Conn. App. 712–16. The habeas court stated ‘‘that

the trial court addressed the note ‘in the most typical

of ways’ by instructing the jury in open court to, inter

alia, continue deliberating and reach a unanimous ver-

dict on the murder charge before considering lesser

included offenses and the other charge. According to

the habeas court, a Chip Smith3 charge was neither

provided to the jury nor needed by the jury at that point

in its deliberations. Because the trial court’s response

to the note was reasonable, the court determined that

Simon would not have suggested any alternative

response to the note had the trial court shared the

contents of the note with him. The habeas court found

that ‘[t]he petitioner presented no evidence, either from

. . . Simon or [through an expert witness], that compe-

tent counsel would have done anything differently had

they been aware of the note.’ On the basis of its forego-

ing findings, the court concluded that it could ‘not see

how the outcome of the trial could have reasonably

been different had the trial court shown [the jury note]

to the petitioner and . . . Simon, and given them an

opportunity to respond.’ ’’ (Footnote added.) Id.,

717–18.

On appeal to this court, the petitioner claims that the

harmless error doctrine does not apply because the

defects were structural in nature. He claims that these

defects implicated his rights to be present during a

critical stage of the proceedings. Under the unique cir-

cumstances of this case, he claims, prejudice should

be presumed. In the alternative, if not a structural error,

the petitioner claims that he was prejudiced by Simon’s

failure to object to the sealing of the note because he

was deprived of the opportunity to inquire into the

nature of the compromise and to suggest to the court

that its response to the note should include a thorough

Chip Smith instruction, rather than the defective Chip

Smith charge that he claims the court provided. We

disagree.

‘‘A claim of ineffective assistance of counsel is gov-

erned by the two-pronged test set forth in Strickland

. . . . Under Strickland, the petitioner has the burden

of demonstrating that (1) counsel’s representation fell

below an objective standard of reasonableness, and (2)

counsel’s deficient performance prejudiced the defense

because there was a reasonable probability that the

outcome of the proceedings would have been different

had it not been for the deficient performance. . . . For

claims of ineffective assistance of counsel arising out

of the plea process, the United States Supreme Court

has modified the second prong of the Strickland test

to require that the petitioner produce evidence that

there is a reasonable probability that, but for counsel’s

errors, [the petitioner] would not have pleaded guilty

and would have insisted on going to trial. . . . An inef-

fective assistance of counsel claim will succeed only

if both prongs [of Strickland] are satisfied.’’ (Internal

quotation marks omitted.) Dyous v. Commissioner of

Mental Health & Addiction Services, 324 Conn. 163,

186, A.3d (2016).

‘‘The issue of whether the representation that a defen-

dant received at trial was constitutionally inadequate

is a mixed question of law and fact. . . . As such, the

question requires plenary review unfettered by the

clearly erroneous standard. . . . In our review of this

claim, we afford great deference to the habeas court’s

factual findings, which underlie its legal conclusions.

The habeas court is afforded broad discretion in making

its factual findings, and those findings will not be dis-

turbed unless they are clearly erroneous. . . . Thus,

[t]his court does not retry the case or evaluate the

credibility of the witnesses. . . . Rather, we must defer

to the [trier of fact’s] assessment of the credibility of

the witnesses based on its firsthand observation of their

conduct, demeanor and attitude. . . . The habeas

judge, as the trier of facts, is the sole arbiter of the

credibility of witnesses and the weight to be given to

their testimony.’’ (Citation omitted; internal quotation

marks omitted.) Id., 187.

The United States Supreme Court has, however, rec-

ognized that ‘‘[i]n certain . . . contexts [pertaining to

the sixth amendment to the United States constitution],

prejudice is presumed.’’ Strickland v. Washington,

supra, 408 U.S. 692. ‘‘In United States v. Cronic, [466

U.S. 648, 659–60, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)],

which was decided on the same day as Strickland,

the United States Supreme Court elaborated on the

following three scenarios in which prejudice may be

presumed: (1) when counsel is denied to a defendant

at a critical stage of the proceeding; (2) when counsel

‘entirely fails to subject the prosecution’s case to mean-

ingful adversarial testing’; and (3) when counsel is

called upon to render assistance in a situation in which

no competent attorney could do so. Notably, the second

scenario constitutes an ‘actual breakdown of the

adversarial process,’ which occurs when counsel com-

pletely fails to advocate on a defendant’s behalf.’’ Davis

v. Commissioner of Correction, 319 Conn. 548, 555, 126

A.3d 538 (2015), cert. denied sub nom. Semple v. Davis,

U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016).

The United States Supreme Court has emphasized in

Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 160

L. Ed. 2d 565 (2004), Mickens v. Taylor, 535 U.S. 162,

166–67, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), and

Bell v. Cone, 535 U.S. 685, 696–97, 122 S. Ct. 1843, 152

L. Ed. 2d 914 (2002), how ‘‘seldom circumstances arise

that justify a court in presuming prejudice,’’ and ‘‘con-

comitantly, in forgoing particularized inquiry into

whether a denial of counsel undermined the reliability

of a judgment . . . .’’ Ellis v. United States, 313 F.3d

636, 643–44 (1st Cir. 2002), cert. denied, 540 U.S. 839,

124 S. Ct. 99, 157 L. Ed. 2d 72 (2003). ‘‘[T]here is a very

limited class of cases involving error that is structural,

that is to say, error that transcends the criminal process.

Johnson v. United States, 520 U.S. 461, 468, 117 S.

Ct. 1544, 137 L. Ed. 2d 718 (1997), citing Sullivan v.

Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed.

2d 182 (1993) (defective reasonable doubt instruction);

Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L.

Ed. 2d 598 (1986) (racial discrimination in selection of

grand jury); Waller v. Georgia, 467 U.S. 39, 104 S. Ct.

2210, 81 L. Ed. 2d 31 (1984) (denial of public trial);

McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79

L. Ed. 2d 122 (1984) (denial of self-representation at

trial); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.

792, 9 L. Ed. 2d 799 (1963) (complete denial of counsel);

Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed.

749 (1927) (biased trial judge).

‘‘Structural [error] cases defy analysis by harmless

error standards because the entire conduct of the trial,

from beginning to end, is obviously affected . . . .

These cases contain a defect affecting the framework

within which the trial proceeds, rather than simply an

error in the trial process itself. . . . Such errors infect

the entire trial process . . . and necessarily render a

trial fundamentally unfair . . . . Put another way,

these errors deprive defendants of basic protections

without which a criminal trial cannot reliably serve

its function as a vehicle for determination of guilt or

innocence . . . and no criminal punishment may be

regarded as fundamentally fair.’’ (Internal quotation

marks omitted.) State v. Lopez, 271 Conn. 724, 733–34,

859 A.2d 898 (2004).

The petitioner argues that the circumstances of the

present case constituted both structural error and a

situation in which both the first and second exceptions

in Cronic, which excuse the petitioner from demonstra-

ting prejudice under the sixth amendment, were met.

We note that, because the petitioner never raised the

claim of structural error under the first exception in

Cronic before either the habeas court or the Appellate

Court, that claim is not properly before this court

because it was procedurally defaulted. Indeed, an

accused is denied counsel at a critical stage of the trial

‘‘when counsel was either totally absent, or prevented

from assisting the accused during a critical stage of the

proceeding.’’ United States v. Cronic, supra, 466 U.S.

659 n.25. This exception applies to the denial of counsel

by government action, i.e., the actions of the trial court,

rather than attorney error. Id.; see also Bell v. Cone,

supra, 535 U.S. 695–96 and n.3. Like structural error,

the type of sixth amendment violation envisioned under

the first exception set forth in Cronic is fully capable

of being raised and decided in the trial court or on

direct appeal. Unlike a typical claim of ineffective assis-

tance of counsel under Strickland, which can only be

adequately litigated in a collateral proceeding; see State

v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied,

476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986);

claims of structural error based on the complete denial

of counsel in a proceeding would be apparent on the

record. See State v. Arline, 223 Conn. 52, 63–65, 612 A.2d

755 (1992) (restriction on defendant’s final argument

violated right to effective assistance of counsel).

Indeed, as the Appellate Court properly concluded,

the petitioner’s claim of structural defect was procedur-

ally defaulted precisely because it was a claim that

could have, and should have, been raised at trial or on

direct appeal. Taylor v. Commissioner of Correction,

supra, 154 Conn. App. 725–27. Moreover, both the peti-

tioner’s claim of structural error and his claim under

the first exception in Cronic are identical. Indeed, if

sealing the note were to be equated with the denial of

counsel, then such a denial would constitute structural

error and excuse the petitioner from having to show

prejudice. Consequently, the petitioner’s claim under

the first exception in Cronic is subject to procedural

default, just as the habeas court found that his structural

error claim had been procedurally defaulted.4

The petitioner also asserts that this court should pre-

sume prejudice under the second exception in Cronic

because his counsel did not fairly test the adversarial

process when he failed to object to the sealed note.

This specific claim was not raised in the habeas court,

the Appellate Court, or in the petition for certification

to this court. Therefore, we decline to review it. See

Bennett v. New Milford Hospital, Inc., 300 Conn. 1,

32–33, 12 A.3d 865 (2011) (refused to review claim not

preserved before trial court or Appellate Court, request

for review pursuant State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 [1989], for first time in reply brief,

and constitutional claim not included in petition for

certification to appeal from judgment of Appellate

Court).5

The petitioner relies on State v. Lopez, supra, 271

Conn. 739, to support his claim that the error in the

present case is structural in nature. Lopez, however,

held found structural error only because the defendant

in that case was represented, in absentia, by counsel

with a possible conflict of interest that was the subject

of the inquiry. Id., 734. In Lopez, the conflict of interest

fell within the very limited class of cases involving error

that is structural and transcends the criminal process

because the deprivation of the defendant’s right to be

present was unquantifiable and indeterminate. Id., 738.

In the present case, by contrast, the failure to object

to the sealed note was readily identifiable, and was

capable of being quantitatively assessed in the context

of the criminal trial. Consequently, Lopez is distinguish-

able and does not support the petitioner’s claim of struc-

tural error in the present case.

The petitioner also asserts that this court should

apply the reasoning of People v. O’Rama, 78 N.Y.2d

270, 274–75, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991),

wherein the trial court received three jury notes indicat-

ing deadlock, and the court administered a deadlocked

jury charge, similar to our Chip Smith charge, in

response to two of the notes. The trial court judge had

sealed one of the notes and counsel for the defendant

objected. Id., 275. The New York Court of Appeals found

that the trial court had erred by sealing the note without

apprising the parties of its contents. Id., 280. Specifi-

cally, the New York Court of Appeals stated that ‘‘[m]an-

ifestly, [the] defendant was prejudiced by the court’s

actions, since the decision to withhold the contents of

the juror’s note deprived him of the opportunity to have

input, through counsel or otherwise, into the court’s

response to an important, substantive juror inquiry.’’

(Footnote omitted.) Id., 279–80. However, as the Appel-

late Court properly concluded in the present case,

O’Rama may be distinguished because that case

involved a direct appeal on the basis of a trial court’s

failure to follow a particular rule of state criminal proce-

dure, rather than a claim of ineffective assistance of

counsel brought by means of a petition for habeas cor-

pus. Taylor v. Commissioner of Correction, 154 Conn.

App. 722. Our state jurisprudence has recognized that

Cronic must be interpreted narrowly and applied rarely.

Vasquez v. Commissioner of Correction, 128 Conn.

App. 425, 436–38, 17 A.3d 1089, cert. denied, 301 Conn.

926, 22 A.3d 1277 (2011).

Furthermore, it is well established that ex parte com-

munications between a judge and a jury, including cir-

cumstances that implicate the defendant’s right to be

present and the right to assistance of counsel, are sub-

ject to harmless error review. See State v. Wooten, 227

Conn. 677, 705–706, 631 A.2d 271 (1993) (ex parte com-

munication between judge and juror subject to harmless

error); State v. McCall, 187 Conn. 73, 81–82, 444 A.2d

896 (1982) (although judge’s ex parte conversation with

jury foreman in chambers constitutionally prohibited,

prejudice must be found to warrant mistrial, burden on

state on direct appeal to prove communication harmless

beyond reasonable doubt); State v. Hackett, 182 Conn.

511, 522–24, 438 A.2d 726 (1980) (although judge’s ex

parte communication with juror arguably technical vio-

lation of right to be present and to have assistance of

counsel, no reversible error in absence of prejudice).

Many federal circuit courts are in accord. See, e.g.,

United States v. Robinson, 560 F.2d 507, 516 (2d Cir.

1977) (‘‘there was little or no need for’’ trial court to

consult with counsel concerning court’s response to

jury note that revealed vote split), cert. denied, 435 U.S.

905, 98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978); see also

United States v. Toliver, 330 F.3d 607, 612 (3rd Cir.

2003) (harmless error analysis applies when trial judge

answers jury’s note without defendant or his counsel

being present). Consequently, in view of the overwhelm-

ing authority, the Appellate Court correctly concluded

that the petitioner was not excused from proving preju-

dice in a collateral proceeding on the basis of a claim

that is subject to harmless error analysis on direct

appeal.

The petitioner asserts that he was prejudiced

because, had the contents of the note been disclosed,

counsel would have requested a Chip Smith charge in

response to the jury’s deadlock and inquired into the

nature of the proposed compromise. Had the jury been

instructed not to abandon their conscientiously held

views, he maintains, they would not have convicted him

for murder. We disagree.

The prejudice prong of Strickland requires that the

petitioner prove that there was a reasonable probability

that the outcome of his trial would have been different

had the petitioner and his counsel viewed the note.

See Taylor v. Commissioner of Correction, supra, 154

Conn. App. 721. The petitioner failed to meet his

required degree of proof in this instance because he

presented no evidence that competent counsel would

have requested a Chip Smith charge at that point in the

deliberation process. Id., 717–21. Moreover, the peti-

tioner presented no evidence that, had he requested a

Chip Smith charge under the circumstances, the court

would have adopted his suggestion, or that the issuance

of such a charge would have established a reasonable

probability that the petitioner would not have been

convicted of murder. See State v. Wooten, supra, 227

Conn. 706–708. The Appellate Court properly held that

the jury was not deadlocked, and that the trial court

did not administer a Chip Smith charge, let alone a

defective one as alleged by the petitioner. Taylor v.

Commissioner of Correction, supra, 154 Conn. App.

720–22.6 The Appellate Court further correctly held that

the trial court appropriately directed the jury to con-

tinue its deliberations and addressed the proposal to

compromise by instructing the jury that they must reach

a unanimous verdict on the murder charge before con-

sidering any lesser included offenses or the other

charge. Id.

The jury in the present case had been deliberating

for only four to five hours and had reviewed selected

portions of witness testimony and instructions, the trial

court addressed all jurors together, there was no indica-

tion that the jury was deadlocked, and the trial court

did nothing to signal that the jury should decide the

case in a certain way. Because a Chip Smith charge is

designed to encourage a deadlocked jury to reach a

verdict and, in the present case, the jury gave no indica-

tion that further deliberations would be fruitless, the

trial court would not likely have so instructed at that

early point in the deliberations, regardless of whether

counsel had suggested that charge. The jury had merely

reported the posture of the voting, in general terms,

indicated that disagreements existed, and inquired as

to the next steps. See United States v. Figueroa-Encar-

nacion, 343 F.3d 23, 31–32 (1st Cir. 2003) (no plain

error where jury reported that they would not be able

to reach verdict after having deliberated almost four

hours, and court merely instructed jury to continue

deliberating), cert. denied sub nom. Medina v. United

States, 540 U.S. 1140, 124 S. Ct. 1130, 157 L. Ed. 2d

951 (2004).

The petitioner further claims that he was prejudiced

because he, himself, was prevented from inquiring into

the nature of the compromise discussed by the jury

foreperson and, thus, was prevented from suggesting

a suitable response. Again, his claim must be rejected

because he offered no evidence to support it. Moreover,

the trial court would not have permitted an inquiry into

the nature of the proposed compromise in the middle

of deliberation because to do so would have violated

the sanctity of the deliberation process. See State v.

West, 274 Conn. 605, 650, 877 A.2d 787 (recognizing

cardinal principle that deliberations of jury shall remain

private and secret; primary if not exclusive purpose of

jury privacy and secrecy is to protect jury’s delibera-

tions from improper influence). Thus, the petitioner

cannot prove prejudice based on his claim that coun-

sel’s failure to object to the sealing of the note violated

his right to be present. He failed to prove that he would

have had something to contribute by way of influencing

the proceedings.

The petitioner also argues that the short period of

deliberations following the court’s failure to instruct

on the proceedings7 supports his claim of prejudice. The

extent of the deliberations after the court responded to

the sealed note, however, demonstrates that the jury

received the instruction to continue in a responsible

manner and it did so. They deliberated approximately

four and one-half hours after the instructions. There-

fore, the petitioner cannot prevail on any of his claims

of prejudice.

To obtain review by this court, a party aggrieved by

a judgment of the Appellate Court must file, and this

court must grant, a petition for certification to appeal.

See General Statutes § 51-197f (limiting appeals by par-

ties from Appellate Court judgments to cases certified

for review ‘‘upon petition by an aggrieved party’’); see

also Practice Book § 84-1; State v. Albino, 312 Conn.

763, 770–71, 97 A.3d 478 (2014). Review by this court

by way of a petition for certification to appeal is not a

matter of right but a matter of discretion. General Stat-

utes § 51-197f; Practice Book § 84-2. The certification

process enables this court to limit its consideration

to ‘‘appropriate issue[s], without the necessity of also

considering issues that do not warrant review by this

court.’’ (Internal quotation marks omitted.) State v.

Ellis, 224 Conn. 711, 722, 621 A.2d 250 (1993).

In his brief to this court, the petitioner presented the

following issues as ‘‘alternative grounds’’ for reversing

the judgment of the Appellate Court: (1) that Simon

rendered ineffective assistance in failing to introduce

certain evidence that Wightwood was too drunk to

make an identification, and that the habeas court and

the Appellate Court had erred in concluding that this

evidence had been presented to the jury through the

testimony of Luisa St. Pierre, a detective at the Hartford

Police Department; and (2) that the appellate counsel

was ineffective for failing to move to have the note

unsealed and for failing to raise claims ‘‘regarding

the note.’’

The petitioner raised the first claim in his petition

for certification, and this court specifically decided not

to include it in its certified questions. See State v. Cote,

314 Conn. 570, 580–81, 107 A.3d 367 (2014) (this court

would not review claim that was beyond scope of certi-

fied question). The petitioner failed to raise the second

claim in his petition for certification, despite the oppor-

tunity to do so. Having been denied certification on the

first claim, and having forgone the opportunity to seek

certification of the second claim, he cannot now be

permitted to obtain review of either claim with any

additional special permission of the court.8 Accordingly,

we decline to consider these claims in the present

appeal.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1

We granted certification limited to the following two issues: (1) ‘‘Did

the Appellate Court properly determine that [Simon’s] deficient performance

in responding to the treatment of the jury note was subject to harmless

error analysis, under which the petitioner bore the burden of proving harm?’’;

and (2) ‘‘If so, did the Appellate Court properly determine that the petitioner

failed to meet that burden?’’ Taylor v. Commissioner of Correction, 316

Conn. 905, 906, 111 A.3d 881 (2015). In accordance with our long-standing

policy of reframing certified questions to more accurately reflect the issues

presented on appeal, we now reframe the certified questions in the present

case as follows: (1) If Simon’s performance was deficient, as held by the

Appellate Court, did the Appellate Court properly determine that it was the

petitioner’s burden to prove that the deficient performance in responding

to the treatment of the jury note prejudiced him?; and (2) Did the Appellate

Court correctly determine that the petitioner had failed to demonstrate

prejudice? See State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010);

Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191,

884 A.2d 981 (2005).

2

‘‘According to the habeas court, the jury did not commence deliberations

on its first day of deliberations until late in the day, after hearing closing

arguments and jury instructions. The jury spent the majority of its second

day of deliberations discussing various prior jury notes with the court and

hearing playbacks of testimony and instructions. After hearing the playbacks,

the jury deliberated for approximately four hours before submitting the note

of the third day of deliberations.’’ Taylor v. Commissioner of Correction,

supra, 154 Conn. App. 712 n.17.

3

A Chip Smith charge provides guidance to a deadlocked jury in reaching

a verdict. See State v. O’Neil, 261 Conn. 49, 74–75, 801 A.2d 730 (2002).

We have adopted the following language for Chip Smith charges: ‘‘The

instructions that I shall give you now are only to provide you with additional

information so that you may return to your deliberations and see whether

you can arrive at a verdict.

‘‘Along these lines, I would like to state the following to you. The verdict

to which each of you agrees must express your own conclusion and not

merely the acquiescence in the conclusion of your fellow jurors. Yet, in

order to bring your minds to a unanimous result, you should consider the

question you have to decide not only carefully but also with due regard and

deference to the opinions of each other.

‘‘In conferring together, you ought to pay proper respect to each other’s

opinions and listen with an open mind to each other’s arguments. If the

much greater number of you reach a certain conclusion, dissenting jurors

should consider whether their opinion is a reasonable one when the evidence

does not lend itself to a similar result in the minds of so many of you who

are equally honest and equally intelligent, who have heard the same evidence

with an equal desire to arrive at the truth and under the sanctions of the

same oath.

‘‘But please remember this. Do not ever change your mind just because

other jurors see things differently or to get the case over with. As I told

you before, in the end, your vote must be exactly that—your own vote. As

important as it is for you to reach a unanimous agreement, it is just as

important that you do so honestly and in good conscience.

‘‘What I have said to you is not intended to rush you into agreeing on a

verdict. Take as much time as you need to discuss the matter. There is no

need to hurry.’’ (Emphasis omitted.) Id.

4

Even if we were to assume, arguendo, that the trial court erred in failing

to disclose to counsel the contents of the note, such error was no more

properly characterized as a denial of counsel than would a trial court’s

error in, for example, precluding counsel from asking certain questions of

witnesses or denying counsel access to certain records. See United States

v. Fernandez, 652 F.3d 56, 62–64 (1st Cir.) (trial court’s error in responding

to jury notes during deliberations, seeking transcripts that were not available,

without alerting counsel, not prejudicial), cert. denied sub nom. Gonzalez-

Melendez v. United States, 565 U.S. 924, 132 S. Ct. 353, 181 L. Ed. 2d 223

(2011); United States v. Gonzalez-Melendez, 594 F.3d 28, 36–37 (1st Cir.

2010) (court’s failure to disclose to parties jury note that requested copies of

indictment and instructions and concluded with ambiguous phrase ‘‘ ‘please

explain,’ ’’ and its response, subject to harmless error analysis).

5

We note that, even if this claim were to be reviewed on its merits, it

would fail because the United States Supreme Court made clear in Bell v.

Cone, supra, 535 U.S. 697, that the second exception in Cronic applies only

when the attorney’s failure is complete, rather than simply an alleged failure

at specific points in the trial, as in this case. Counsel must ‘‘entirely [fail] to

subject the prosecution’s case to meaningful adversarial testing.’’ (Emphasis

omitted; internal quotation marks omitted.) Id.

6

The petitioner relies on United States v. Ronder, 639 F.2d 931, 932 (2d

Cir. 1981), and argues that the trial court’s instruction to the jury in response

to the note in the present case constituted a defective, prejudicial Chip

Smith charge that required correction. In Ronder, a jury submitted three

notes to the trial court on its final day of deliberations. Id., 932–33. The trial

court did not share the contents of the notes with counsel and unilaterally

responded to each note. Id. The United States Court of Appeals for the

Second Circuit concluded that the trial court committed reversible error by

not revealing the contents of the notes to counsel, explaining that counsel

could have contributed valuable input in tailoring the court’s response to

each note. Id., 934–35. In addition, as the Appellate Court noted in its opinion

‘‘the Second Circuit emphasized that the evidence in the case was sharply

disputed and that the jury had twice reported a deadlock, making defense

counsel’s involvement in the court’s responses to the notes critical.’’ Taylor

v. Commissioner of Correction, supra, 154 Conn. App. 716–17. Ronder is

distinguishable on the grounds that, the jury here was not deadlocked, the

trial court had not provided the jury with a defective Chip Smith charge,

but merely instructed the jury to continue deliberating and to reach a verdict

on the murder charge before considering any lesser included offenses or

the other charge, and there was no evidence that the jury felt pressured to

reach a verdict after receiving the court’s instruction in response to the note.

7

The petitioner also claims, in the context of his prejudice argument, that

counsel’s failure to object to an alleged erroneous instruction on intent

contributed to prejudice. This issue is not properly before this court. The

habeas court rejected this argument, and the petitioner did not challenge

that ruling on appeal before the Appellate Court. Taylor v. Commissioner

of Correction, supra, 154 Conn. App. 720 n.24.

8

As to the first of these two claims, the Appellate Court agreed with

the habeas court that, although Simon did not introduce the evidence in

question—namely, a document authored by St. Pierre indicating that Wight-

wood had been too drunk to make an identification—the document was

used on cross-examination ‘‘to orally publish St. Pierre’s written statement

in the document to the jury,’’ and, thus, the petitioner had not met his burden

to prove that Simon’s performance was deficient for failing to introduce that

document to impeach Wightwood. Taylor v. Commissioner of Correction,

supra, 154 Conn. App. 697–700. As to the second claim, the Appellate Court

agreed with the habeas court, concluding that the petitioner had presented

no evidence regarding the extent to which Falk considered this issue, and

if he did, why he decided not to pursue it, and further concluding that, given

its conclusion that any error in handling the note during trial did not prejudice

the petitioner, it could not conclude that Falk was ineffective for failing to

raise the issue on appeal. Id., 722–24.