DEVON TAYLOR v. COMMISSIONER OF CORRECTION, SC 19462

Judicial District of Tolland

 Habeas; Ineffective Assistance of Counsel; Whether Petitioner Bore Burden of Proving Prejudice Resulting from Counsel’s Deficient Performance in Connection with Trial Court’s Handling of Jury Note.  The petitioner brought this habeas action claiming that his criminal trial counsel rendered ineffective assistance in failing to object to the trial court’s decision to seal a jury note without an explanation on the record, its refusal to divulge the contents of the note to counsel, and its instruction to the jury following the court’s receipt of the note.  The habeas court denied relief, finding that, while the petitioner’s trial counsel’s performance was deficient in regard to the jury note, the petitioner failed to prove that he was prejudiced by the deficient performance.  The Appellate Court (154 Conn. App. 686) affirmed the judgment denying the habeas petition, agreeing with the habeas court that the petitioner had not borne his burden of proving prejudice by demonstrating a reasonable probability that the outcome of the criminal trial would have been different if not for counsel’s deficient performance as to the jury note.  The Appellate Court rejected the petitioner’s claim that prejudice should be presumed because the trial court’s failure to share the contents of the note with trial counsel and to permit counsel to offer input into the court’s response to the note acted to constructively deny him the assistance of counsel altogether, noting that this was not one of those rare instances where a habeas petitioner need not prove prejudice to establish a claim of ineffective assistance of counsel.  The Supreme Court granted the petitioner certification to appeal.  It will consider whether the Appellate Court properly determined that, to prevail on his claim of ineffective assistance of counsel, the petitioner bore the burden of proving that he was prejudiced by his trial counsel’s deficient performance and, if so, whether the Appellate Court properly determined that the petitioner did not meet that burden.