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White v. Commissioner of Correction
ANDRE DESMOND WHITE v. COMMISSIONER
OF CORRECTION
(AC 46901)
Moll, Westbrook and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted after a jury trial of home invasion,
robbery and other crimes, appealed, on the granting of certification, from
the habeas court’s judgment denying his petition for a writ of habeas corpus.
He claimed, inter alia, that the court improperly rejected a freestanding
constitutional claim, pursuant to McCoy v. Louisiana (584 U.S. 414), that
his criminal trial counsel, M, violated his sixth amendment right to client
autonomy by effectively conceding his guilt to a charge of conspiracy to
commit burglary in the first degree during closing argument to the jury
without the petitioner’s consent. Held:
The petitioner failed to preserve a freestanding McCoy claim for appellate
review because it was not distinctly raised before or decided by the habeas
court, as the petitioner pleaded M’s alleged concession of guilt in a count
of the habeas petition labeled as sounding in ineffective assistance of coun-
sel, and, even if a McCoy claim had been properly preserved, this court was
unpersuaded that a McCoy violation existed, as the petitioner never made
an intransigent and unambiguous objection to M regarding a concession of
guilt, and M did not concede the petitioner’s guilt to the jury but, rather,
stated several times that the petitioner was not guilty as part of a strategic
attempt to provide a more favorable view of the evidence.
The petitioner failed to establish that M’s performance at trial was deficient
such that it amounted to constitutionally ineffective assistance.
The habeas court correctly decided that M’s closing argument and decision
not to object to the prosecutor’s contention that he had conceded the
petitioner’s guilt did not constitute deficient performance, as M reasonably
could have believed it was essential to mitigate the impact of the prosecutor’s
contention by arguing that the petitioner, in acting only as a messenger
between the conspirators, lacked the specific intent for the jury to find
him guilty of conspiracy, and, had M decided to object to the prosecutor’s
argument, it could have had the undesirable effect of focusing the jury’s
attention on that argument.
This court concluded, contrary to the petitioner’s claim, that M’s cross-
examination of one of the petitioner’s coconspirators, D, fell within the
wide range of acceptable performance, as M emphasized to the jury that D
faced multiple serious charges and had received a very favorable deal from
the state by agreeing to testify against the petitioner, and M’s decision not

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White v. Commissioner of Correction
to object to the admission into evidence of D’s cooperation agreement with
the state was not objectively unreasonable or prejudicial to the petitioner.
The petitioner failed to identify any evidence in support of his claim that
M rendered ineffective assistance in failing to seek the dismissal of all
charges against the petitioner on the ground that the state had recorded his
prison phone calls that were made during the time he was self-represented
or to suppress the state’s use of those recordings, as the phone calls, rather
than reflecting possible trial strategy, formed the basis of a witness tampering
charge against the petitioner, and M’s objections to the admission of those
phone calls were overruled.
The habeas court properly denied the petitioner’s claim that M rendered
ineffective assistance in failing to object to the trial court’s canvass of the
petitioner regarding the waiver of his right to self-representation and its
appointment of M as full counsel, as M, who was acting as standby counsel
at the time of the canvass, had no sixth amendment duty to object, and the
petitioner’s insistence that he would have represented himself had he been
permitted to do so was belied by the record, which reflected his clearly
expressed desire to be represented by counsel.
The habeas court did not abuse its discretion by excluding as irrelevant D’s
testimony at the habeas trial that the handgun the perpetrators used in the
home invasion was fake, as the operability of the gun was not an essential
part of the state’s case during the criminal trial, and evidence had been
admitted at the criminal trial through the victim’s testimony that the perpetra-
tors had in their possession the victim’s long guns, which they stole during
the home invasion and which the victim had recently used, from which the
jury could reasonably infer operability, and, even if the inquiry of D were
relevant, the exclusion of his testimony regarding the gun was harmless.
Argued March 13—officially released October 28, 2025
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, M. Murphy, J.; thereafter,
the petition was withdrawn in part; judgment denying
the petition, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).

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White v. Commissioner of Correction
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were David R. Shan-
non, state’s attorney, Angela R. Macchiarulo, supervi-
sory assistant state’s attorney, and Linda F. Rubertone,
senior 	assistant 	state’s 	attorney, 	for 	the 	appellee
(respondent).
Opinion
WESTBROOK, J. The petitioner, Andre Desmond
White, appeals, following the granting of his petition
for certification to appeal, from the judgment of the
habeas court denying his amended petition for a writ
of habeas corpus. The petitioner was convicted follow-
ing a jury trial of home invasion in violation of General
Statutes § 53a-100aa (a) (1), conspiracy to commit bur-
glary in the first degree in violation of General Statutes
§§ 53a-48 and 53a-101 (a) (3), robbery in the first degree
in violation of General Statutes § 53a-134 (a) (2), rob-
bery in the first degree in violation of § 53a-134 (a) (4),
and tampering with a witness in violation of General
Statutes § 53a-151. He claims on appeal that the court
improperly (1) denied his freestanding constitutional
claim asserting, pursuant to McCoy v. Louisiana, 584
U.S. 414, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), that
his criminal trial counsel violated his right to client
autonomy under the sixth amendment to the United
States constitution by effectively conceding the peti-
tioner’s guilt to the conspiracy to commit burglary
charge during closing argument without obtaining his
consent to do so and despite his desire to maintain his
innocence; (2) concluded that his criminal trial counsel
did not provide ineffective assistance by (a) conceding
the petitioner’s guilt during closing argument and/or
failing to object to the prosecutor’s characterization of
that concession during rebuttal closing argument; (b)
failing to attack adequately the credibility of one of the
petitioner’s alleged coconspirators, Trayvon Dunning,
during Dunning’s cross-examination, or to object to the

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White v. Commissioner of Correction
admission into evidence of an unredacted copy of a
cooperation agreement between Dunning and the state
in exchange for Dunning’s testimony against the peti-
tioner; (c) failing to seek the dismissal of all charges
on the ground that the state had monitored and
recorded his prison telephone calls while the petitioner
was self-represented and failing to seek to suppress the
state’s use of such recordings; and (d) failing to object
to the trial court’s canvass regarding his waiver of his
right to self-representation; and (3) excluded as irrele-
vant Dunning’s proffered testimony that the gun used
during the commission of the underlying crimes was
fake. For the reasons that follow, we reject the petition-
er’s claims and affirm the judgment of the habeas court.
In the petitioner’s direct criminal appeal, this court
set forth the following facts that the jury reasonably
could have found with respect to the underlying convic-
tions. See State v. White, 195 Conn. App. 618, 622–26,
226 A.3d 1066, cert. denied, 335 Conn. 906, 227 A.3d 77
(2020). ‘‘Early in 2013, the [petitioner], Henry Le, and
[Dunning] were serving time as inmates at the same
correctional facility. During this time, the three men
agreed to commit home invasions following their
release from prison. 1 . . . The men agreed that they
1 ‘‘In several telephone conversations, the [petitioner] made statements
while incarcerated that tended to implicate him in the home invasion. Two
months prior to his release, the [petitioner] had a telephone conversation
with his mother in which they discussed financial matters. During [that]
conversation, the [petitioner] stated, ‘I’m coming across a bunch of money
when I get out, that’s why I gotta get out.’ In a telephone conversation with
Le that took place on March 23, 2013, the [petitioner] referred to his imminent
release from prison. He stated that Dunning was going to be ‘ready’ and
that he would tell Dunning that Le had ‘everything set up.’ In a telephone
conversation with his father that occurred on February 7, 2015, while he
was incarcerated and awaiting trial, the [petitioner] stated that he had his
upcoming case ‘in the palm of his hand.’ The [petitioner], revealing his
knowledge of the crime, also stated that Le, who had accepted a guilty plea,
had ‘copped out’ and was ‘the mastermind.’ ’’ State v. White, supra, 195
Conn. App. 622–23 n.2.

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would identify a suitable victim in public, follow the
victim home, and commit a robbery at his or her resi-
dence. [Following their release, and] [i]n preparation to
carry out their plan, in early April, 2013, they purchased
items at a home improvement store, including masks,
gloves, and zip ties.
‘‘Late in the day on April 7, 2013, Dunning was driving
an automobile on Interstate 84 in Hartford, and the
[petitioner] and Le were his passengers. The three men
observed the victim, Peter Brown, who was driving a
BMW sport utility vehicle. The men decided to follow
the victim after observing that he appeared to be alone,
that he was a white male in his forties or fifties, and he
was driving an expensive automobile. The men followed
the victim from Hartford to his residence in New Hart-
ford. . . .
‘‘As the victim approached the back door of his resi-
dence, the [petitioner], Le, and Dunning, all of whom
had their faces concealed, confronted him. . . . [O]ne
of [the three] was brandishing a gun. . . . The men
ordered the victim to give them his wallet and his cell
phone. At gunpoint, the victim complied. . . . After the
victim informed them that nobody else was at home
and that he did not have an alarm system, the men
forced the victim inside his residence.
‘‘For the next forty-five to fifty minutes, the [peti-
tioner], Dunning, and Le confined the victim to a chair
in his kitchen. They searched the contents of an over-
night bag that the victim had been carrying. They repeat-
edly asked the victim if he owned a safe, to which he
replied, no. They removed a credit card and an auto-
matic teller machine (ATM) card from his wallet. One
of the men demanded the victim’s ATM card’s pin num-
ber. . . . After the victim provided the pin number, Le
demanded the keys to the victim’s automobile, asked
him where the nearest ATM was located, and left the

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White v. Commissioner of Correction
residence. Le returned to the victim’s residence a short
time later after having withdrawn funds from the vic-
tim’s bank account at an ATM in New Hartford.
‘‘While one of the three men held the victim at gun-
point in his kitchen, they each took turns ransacking
every room of his residence in search of valuables. The
men brought various items to the kitchen. Thereafter,
Dunning parked his automobile in the victim’s drive-
way. While the victim continued to be held at gunpoint,
as he had been throughout the entire incident, the men
carried several of the victim’s possessions to Dunning’s
automobile. . . .
‘‘They then quickly fled from the scene in Dunning’s
automobile. The victim went to his neighbor’s residence
to request help. The victim’s neighbor called 911, and
the police arrived on the scene quickly thereafter.
‘‘Following the [petitioner’s] arrest and while he was
awaiting trial . . . he had conversations with others in
an attempt to persuade Dunning not to testify against
him.’’ (Footnote in original; footnotes omitted.) Id., 622–
25. ‘‘Dunning [nevertheless] testified on behalf of the
state at trial.’’ Id., 626.
The trial court appointed Attorney Dennis P. McDon-
ough of the Office of the Public Defender to represent
the petitioner at trial.2 The jury found the petitioner
guilty of all charges. By way of a special interrogatory,
2 The record shows that Attorney John Cizik, Jr., of the Office of the
Public Defender, initially represented the petitioner from the time of his
arraignment on August 9, 2013, until June 9, 2015, when the petitioner elected
to represent himself. The trial court later appointed McDonough as standby
counsel. In January, 2017, shortly before trial, the petitioner waived his right
to self-representation and moved to have counsel appointed. In response,
the court appointed McDonough to represent the petitioner. On the day of
jury selection, McDonough filed a motion to withdraw from the case.
Although the petitioner consented to the withdrawal and told the court
that he wanted a new attorney, the court denied McDonough’s motion to
withdraw, and McDonough represented the petitioner throughout the trial.

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White v. Commissioner of Correction
the jury also found that the petitioner had committed
the home invasion and robbery with the use of a firearm
in violation of General Statutes § 53-202k. Id., 621 n.1.
The petitioner received a total effective sentence of
thirty years of incarceration, fifteen years of which was
a mandatory minimum, execution suspended after
twenty years, followed by five years of probation. Id.
The petitioner appealed to this court from the judg-
ment of conviction. Id., 621. In March, 2018, while his
direct appeal remained pending, he commenced the
present 	habeas 	action. 	On 	August 	13, 	2021, 	his
appointed counsel filed the operative amended petition
for a writ of habeas corpus, which contained three
counts. Count one alleged that his trial counsel, McDon-
ough, had provided ineffective assistance. The peti-
tioner alleged multiple specifications of purported defi-
cient 	performance 	by 	McDonough, 	including 	that,
‘‘[d]uring closing arguments, [McDonough] effectively
conceded the petitioner’s guilt to certain of the charges
brought against him, without the petitioner’s consent,
in violation of the rule described in McCoy v. Louisiana,
[supra, 584 U.S. 417].’’ 3 Counts two and three raised
3 As the habeas court set forth in its memorandum of decision, filed July
18, 2023, the petitioner alleged in his operative petition that McDonough
had provided ineffective assistance by ‘‘(1) failing to conduct an adequate
investigation into the facts and circumstances underlying the charges
brought against the petitioner; (2) failing to adequately cross-examine,
impeach, or otherwise undermine the credibility of [Dunning]; (3) failing to
raise, claim, prove or argue the potential defense to robbery in the first
degree that the petitioner and his alleged coconspirators did not possess
or use an operable firearm during the alleged robbery; (4) conceding the
petitioner’s guilt to certain of the charges brought against him without
the petitioner’s consent; (5) failing to object to the prosecuting authority’s
comments during closing arguments vouching for Dunning’s credibility; (6)
failing to anticipate that his comments during closing arguments would invite
the prosecuting authority’s comments vouching for Dunning’s credibility;
(7) failing to object to the admission into evidence of the entire, unredacted
cooperation agreement between Dunning and the prosecuting authority; (8)
failing to move to dismiss the charges against the petitioner due to the
prosecuting authority’s surveillance of the petitioner’s efforts to prepare a
defense while representing himself; (9) failing to file a motion in limine

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White v. Commissioner of Correction
freestanding due process claims.4 The respondent, the
Commissioner of Correction, filed a return, leaving the
petitioner to his proof on his allegations and asserting
several defenses, including procedural default as to
counts two and three. 5
The habeas court, M. Murphy, J., conducted a trial
over three days. The petitioner testified and called as
precluding the state from presenting any evidence derived from its surveil-
lance of the petitioner while he was representing himself; (10) failing to
move to disqualify the state’s attorney’s office that directed and/or was
aware of the surveillance of the petitioner by the prosecuting authority
while the petitioner was representing himself; (11) failing to argue that the
petitioner’s alleged home invasion and robbery were not accomplished using
a firearm and therefore not eligible for the sentencing enhancement con-
tained in . . . § 53-202k; (12) failing to object to the trial court’s canvass
of the petitioner indicating that, by electing to have trial counsel represent
him, the petitioner was forever giving up his right to resume representing
himself in this matter; (13) failing to object to the court’s decision to sentence
the petitioner to thirty years instead of twenty-five years when the court
offered no explanation for the change in sentence following a recess at the
request of the prosecuting authority; and (14) failing to adequately advise
the petitioner regarding the attractiveness of the court’s plea offer to the
petitioner, which consisted of an offer of thirty years, suspended after ten
to fourteen years with a right to argue for the specific amount of years,
with five years of probation.’’
In addition, the petitioner alleged that McDonough had rendered ineffec-
tive assistance by ‘‘failing to (1) object to the identification of the petitioner
from security camera footage; (2) move to suppress the petitioner’s identifi-
cation from security camera footage; (3) object to the admissibility, for
lack of relevance, of a Coinstar receipt offered into evidence against the
petitioner; (4) object to the admissibility, for lack of relevance, of certain
shotgun ammunition seized from the house where the petitioner’s family
lived; (5) object to the court’s determination that the petitioner’s conduct
met the eligibility requirements for the sentencing enhancement contained
in § 53-202k, as opposed to [requiring] the enhancement to be found by
the jury.’’ The petitioner withdrew these five additional specifications of
ineffective assistance of counsel prior to the commencement of trial.
4 ‘‘In habeas corpus proceedings, courts often describe constitutional
claims that are not tethered to a petitioner’s sixth amendment right to
counsel as freestanding.’’ (Internal quotation marks omitted.) Saunders v.
Commissioner of Correction, 343 Conn. 1, 25–26, 272 A.3d 169 (2022).
5 The petitioner does not challenge the denial of counts two and three on
appeal, and, accordingly, it is unnecessary to discuss them further.

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White v. Commissioner of Correction
witnesses State’s Attorney David R. Shannon, who pros-
ecuted the criminal trial; Dunning; Attorney Lisa J.
Steele, who represented the petitioner in his direct crim-
inal appeal; and McDonough. The petitioner submitted
into evidence several exhibits, including the transcripts
of the criminal trial and, on March 21, 2013, filed a
posttrial brief. That same day, the respondent filed with
the court a notice indicating that, because he believed
the petitioner had failed to proffer any evidence in sup-
port of his claims, the respondent would rest on the
evidence presented at trial.
On July 18, 2023, the habeas court issued a memoran-
dum of decision denying the petition in its entirety. 6
With respect to six of the petitioner’s specifications of
ineffective assistance—specifically, those pertaining to
McDonough’s closing arguments, his cross-examination
of Dunning, the petitioner’s exclusion from an in-cham-
bers discussion during sentencing, law enforcement’s
surveillance of the petitioner when he was incarcerated
and self-represented, the court’s canvass regarding the
petitioner’s right to self-representation, and McDon-
ough’s advice regarding a plea offer—the court con-
cluded that the petitioner had failed to sustain his bur-
den of establishing either deficient performance or prej-
udice, as required to prove a claim of ineffective
assistance of counsel under Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). With respect to the remainder of the petitioner’s
specifications of ineffective assistance, the court found
that the petitioner had failed to address them in his
posttrial brief, leading the court to conclude: ‘‘As a
6 The habeas court simultaneously denied a petition for a new trial that
the petitioner had filed pursuant to Practice Book § 42-55 in a separate
docket. The record shows that, on April 4, 2023, the parties had filed a joint
stipulation in which they agreed that the court’s resolution of the habeas
matter would govern the outcome of the petition for a new trial. The peti-
tioner does not challenge the court’s ruling on the petition for a new trial
in the present appeal.

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White v. Commissioner of Correction
result, this court considers these claims abandoned. To
the extent they are not deemed abandoned, they are
without factual foundation and support in the record.’’
The court subsequently granted the petitioner’s petition
for certification to appeal. This appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
I
The petitioner first claims that the habeas court
improperly 	rejected 	his freestanding 	constitutional
claim in which he invoked McCoy v. Louisiana, supra,
584 U.S. 414, for the proposition that his sixth amend-
ment right to client autonomy was violated because,
during closing argument to the jury, McDonough alleg-
edly conceded his guilt to the conspiracy to commit
burglary charge without his consent and against his
desire to maintain his innocence. The respondent con-
tends that the petitioner never raised a freestanding
McCoy claim before the habeas court and that, even if
we were to conclude that he had done so and that the
claim effectively was decided and rejected by the court,
the petitioner cannot prevail on his claim under the
facts of this case. On the basis of our careful review
of the pleadings, record, and relevant case law, we agree
with the respondent that the plaintiff has not properly
preserved or established a McCoy violation.
The following additional facts and procedural history
are relevant to this claim. At the criminal trial, the
prosecutor, as part of his initial closing argument to
the jury, replayed excerpts of the audio recordings of
the petitioner’s phone calls with his mother, father, and
Le, in which, the prosecutor argued, the petitioner had
made incriminating statements tying him to the home
invasion scheme. See footnote 1 of this opinion.
In his closing argument, McDonough responded in
relevant part: ‘‘In the audios that you heard, you heard

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White v. Commissioner of Correction
my client say certain things, but he never admitted
participation in a crime, actually said he didn’t do
it. He sat there at break or at lunch with [Dunning and
Le] and listened to them put together their plan. He
would know which one was the smarter of the two. He
would know which one would be the one who was the
major planner so he could say he wasn’t—who was the
mastermind, and we know who the mastermind is.
‘‘There’s no evidence of guilt. It’s evidence of maybe
knowledge. He knew what they were planning. He didn’t
want to take part in it, relayed information by phone
calls. He also said in the pre—I believe it was his mother
then—I already have the money. If you already have
the money, then there’s no reason to steal the money.
The crime hadn’t yet been committed but he had the
money, but he does not have to prove where he had
the money, how he got the money and how much money
it was, but he does say, ‘I already had the money,’ to
his mother in the pre-crime phone call, which supports
the fact that he didn’t really take part in the crime.
‘‘I believe it’s still significant, when he’s talking to
[Le], he doesn’t know when he’s getting out of jail. [Le]
wants [Dunning] to know he’s setting it up. He tells
that to [the petitioner] to tell to [Dunning]. Not knowing
whether [the petitioner’s] getting out or not. You can’t
take isolated little snippets out of—from years of phone
calls and say that is beyond reasonable doubt, that’s
participation in a crime. It just isn’t logical. It isn’t right.
‘‘The phone call with his father you can infer that he
knew that [Le and Dunning] were planning a crime. He
relays that to his father, and that was an uncomfortable
phone call for many reasons, but it doesn’t make [the
petitioner] a criminal. Just mere knowledge does not
make you a participant in a crime. It’s things you know
that’s going to happen, or maybe you know it did happen
and who did it.’’ (Emphasis added.)

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White v. Commissioner of Correction
In his rebuttal argument, the prosecutor stated in
relevant part: ‘‘So, what did [McDonough] just tell you?
He just told you my client’s guilty of burglary in the
first degree because he says they sat in the cafeteria,
they talk about it in front of him, planning a home
invasion, and then we know for a fact that he called
up [Le] and conveyed a message between [Dunning and
Le]. Two of the people [McDonough] is admitting are
conspirators in this home invasion. So, really, what
you’re saying is, there’s four conspirators. [The petition-
er’s brother], [Dunning], [Le] and my client, because he
relayed a message and that’s an overt act in furtherance
of the conspiracy. So, right then and there—boom—
the elements have been met. But that’s not this case
theory in case, and I don’t think that that’s what the
evidence bears out.
* * *
‘‘If you go along with what [McDonough] is saying,
then [the petitioner] literally sat there while two people
planned a home invasion robbery and did nothing about
it. Not only did he do nothing about it, he helped by
relaying messages, and then, after this serious crime
happened, he went and profited from it. He didn’t say,
when the police interviewed him, you know what, that
is me with [Le] and I gotta tell you they were—they
were talking about doing this when they were in jail. I
didn’t really think they’d do it, or I didn’t want anything
to do with it. They were talking about it in jail. I didn’t
want to say ‘no, guys, that’s the wrong thing to do,’
because I’m in jail and I want to seem like a tough guy.’’
We next set forth our standard of review and a discus-
sion of McCoy v. Louisiana, supra, 584 U.S. 414, includ-
ing our Supreme Court’s recent interpretation and appli-
cation of the McCoy rule in Grant v. Commissioner of
Correction, 345 Conn. 683, 287 A.3d 124 (2022). ‘‘In
McCoy, the United States Supreme Court recognized a

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White v. Commissioner of Correction
criminal defendant’s sixth amendment right to auton-
omy in deciding the objectives of his defense and con-
cluded that the right prohibits defense counsel from
admit[ting] [a] client’s guilt of a charged crime over the
client’s intransigent objection to that admission. . . .
[If] a client expressly asserts that the objective of his
defense is to maintain innocence of the charged crimi-
nal acts, his lawyer must abide by that objective and
may not override it by conceding guilt. . . .
‘‘The facts in McCoy were not in dispute. The peti-
tioner, Robert Leroy McCoy, was charged with three
counts of first degree murder. . . . Throughout the
proceedings, 	McCoy 	maintained 	his 	innocence,
insisting that he was out of state at the time of the
killings. . . . McCoy’s defense counsel, Larry English,
concluded that the evidence against McCoy was over-
whelming and that, [in the absence of] a concession at
the guilt stage that McCoy was the killer, a death sen-
tence would be impossible to avoid at the penalty
phase. . . .
‘‘McCoy was furious when English told him that he
intended to concede McCoy’s guilt to the murders. . . .
Two days before trial was set to begin, McCoy sought
to terminate English’s representation, and English simi-
larly requested that the court remove him as McCoy’s
counsel, given their disagreement over trial strategy.
. . . The trial court denied both requests . . . and,
subsequently, English argued to the jury that there was
no way reasonably possible that [it] could hear the
prosecution’s evidence and reach any other conclusion
than . . . McCoy was the cause of these individuals’
death[s] . . . and that the evidence is unambiguous
[that McCoy] committed three murders. . . . There-
after, McCoy took the witness stand to assert his inno-
cence and to [press] an alibi difficult to fathom. . . .
The jury found McCoy guilty on all three murder counts,
and, following the penalty phase hearing, the trial court

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sentenced him to death in accordance with the jury’s
verdicts. . . . The Louisiana Supreme Court subse-
quently upheld the trial court’s ruling that English had
authority to concede McCoy’s guilt, despite McCoy’s
opposition to any admission of guilt, concluding that
[t]he concession was permissible 	. 	. 	. 	because
[English] 	reasonably 	believed 	that 	admitting 	guilt
afforded McCoy the best chance to avoid the death
[penalty]. . . .
‘‘The United States Supreme Court reversed the Loui-
siana Supreme Court’s judgment, holding that a defen-
dant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s [experienced
based] view is that confessing guilt offers the defendant
the best chance to avoid the death penalty. . . . The
court explained that, although the role of counsel neces-
sarily entails making certain [t]rial management and
strategic decisions concerning what arguments to pur-
sue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evi-
dence, other decisions are reserved for the client alone,
such as whether to plead guilty, waive the right to a
jury trial, testify in one’s own behalf, and forgo an
appeal. . . .
‘‘Autonomy to decide that the objective of the defense
is to assert innocence belongs in this latter category.
. . . These are not strategic choices about how best to
achieve a client’s objectives; they are choices about
what the client’s objectives in fact are. . . .
‘‘In reaching its decision [in McCoy], the [United
States Supreme Court] distinguished Florida v. Nixon,
543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004),
a case involving a Strickland claim in which the [c]ourt
considered whether the [c]onstitution bars defense
counsel from conceding a . . . defendant’s guilt at trial

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when [the] defendant, informed by counsel, neither con-
sents nor objects . . . .’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Grant v.
Commissioner of Correction, supra, 345 Conn. 694–96.
‘‘In Nixon, the court concluded that, [w]hen counsel
informs [a] defendant of the strategy counsel believes
to be in the defendant’s best interest and the defendant
is 	unresponsive, 	counsel’s 	strategic 	choice 	is 	not
impeded by any blanket rule demanding the defendant’s
explicit consent. . . .
‘‘The court [in McCoy] explained that the distinguish-
ing factor between McCoy and Nixon was that, unlike
the defendant in Nixon, who never verbally approved
or protested counsel’s proposed approach . . . McCoy
vociferously insisted that he did not engage in the
charged acts and adamantly objected to any admission
of guilt. . . . In such circumstances, the court deter-
mined, English was constitutionally obligated to honor
McCoy’s wish to pursue a defense of actual innocence,
no matter how ill-advised or weak that defense may
have been.’’ (Citations omitted; internal quotation marks
omitted.) Id., 697.7 In considering whether a McCoy
violation has occurred, the subordinate facts found by
the habeas court are subject to the clearly erroneous
standard of review, but whether those facts constitute
a violation of the petitioner’s sixth amendment right
to autonomy as set forth in McCoy presents a mixed
question of law and fact over which our review is ple-
nary. Id., 694.
In Grant, the issue before our Supreme Court was
whether the habeas court in that case properly had
7 The court in McCoy held that, unlike a violation of the right to the
effective assistance of counsel, a violation of a defendant’s sixth amendment
right to autonomy is structural error that is not subject to harmless error
review. See McCoy v. Louisiana, supra, 584 U.S. 427. In other words, once
a violation is established, the defendant does not have to demonstrate preju-
dice to be entitled to a new trial. Id., 428.

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concluded that the rule announced in McCoy was inap-
plicable because, although defense counsel had con-
ceded during closing argument that the petitioner was
guilty of manslaughter, there was no evidence in the
record that counsel did so over an expressed objection
from the petitioner. In affirming the judgment of the
habeas court, our Supreme Court provided the follow-
ing insight into its understanding of the scope of the
rule announced in McCoy: 8 ‘‘The United States Supreme
Court made clear in McCoy that the sixth amendment
right to autonomy is implicated only when, over a defen-
dant’s express objections, counsel concedes the defen-
dant’s guilt to a charged offense. This limitation on the
right to autonomy is evident throughout the court’s
decision but especially in the court’s restatement of the
issue presented: whether it is unconstitutional to allow
defense counsel to concede guilt over the defendant’s
intransigent 	and 	unambiguous 	objection. 	. 	. 	.
Because no such objection was made [by the petitioner
in Grant]—indeed, [he] does not contend otherwise—
the habeas court correctly determined that [the petition-
er’s] right to autonomy was not implicated under the
facts of this case.’’ (Emphasis altered; footnote omitted;
internal quotation marks omitted.) Id., 698–99. In a foot-
note, the court in Grant suggested that, if defense coun-
sel fails to get a defendant’s approval before conceding
guilt to a charge, such a failure properly is challenged
via an ineffective assistance of counsel claim, not as a
8 As aptly observed by the Harvard Law Review: ‘‘After McCoy, it is unclear
what circumstances amount to McCoy violations. The [United States
Supreme] Court held that ‘a defendant has the right to insist that counsel
refrain from admitting guilt,’ without addressing key threshold questions:
What constitutes a concession of guilt? How much objection is necessary
to trigger McCoy, given the gaping gray area between Nixon’s unresponsive
defendant and McCoy’s strenuous objector? Must the defendant’s objection
be on the trial record? The [c]ourt declined to address whether McCoy’s rule
applies in scenarios less explicit than the facts of McCoy itself.’’ (Footnote
omitted.) Note, ‘‘The Supreme Court—Leading Cases,’’ 132 Harv. L. Rev.
277, 383 (2018).

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stand-alone McCoy violation. See id., 698–99 n.8. The
court explained: ‘‘In his posttrial brief in the habeas
court, the petitioner conceded that his case was distin-
guishable from McCoy because, unlike the petitioner
in McCoy, he did not object to [counsel’s] concession.
The petitioner argued, however, that the record reason-
ably support[ed] a finding that [counsel] failed to inquire
with the petitioner prior to [conceding his guilt] . . . .
The petitioner then argued that [i]t is tautological that,
if counsel is not free to concede to a client’s guilt for
strategic purposes over a client’s objection, counsel
should similarly not be free to do so without inquiring
with the client at all. Since McCoy, [however], courts
that have considered similar claims have held that they
should be analyzed within the Strickland ineffective
assistance of counsel framework.’’9 (Emphasis added;
internal quotation marks omitted.) Id., 698–99.
9 In support of its position, the court in Grant cited the following cases:
‘‘See, e.g., Harvey v. State, 318 So. 3d 1238, 1239–40 (Fla. 2021) (in absence
of express objection to counsel’s concession, claim that counsel conceded
guilt without consulting defendant implicates right to effective assistance
of counsel under Nixon and Strickland, not right to autonomy under McCoy),
cert. denied, 	U.S. 	, 142 S. Ct. 1110, 212 L. Ed. 2d 8 (2022); Harper
v. State, Docket No. 20-1537, 2022 WL 1100280, *4–7 (Iowa App. April 13,
2022) (decision without published opinion, 978 N.W.2d 99) (same); see also
Palmer v. Garrett, Docket No. 3:18-cv-00245-HDM-CLB, 2022 WL 3684713,
*7 (D. Nev. August 25, 2022) (concluding that McCoy was inapplicable to
claim that counsel did not adequately advise petitioner of ramifications of
concession strategy because ‘McCoy addressed a [defendant’s] autonomy,
not counsel’s competence . . . and any claims challenging trial counsel’s
advice could have been raised in [the petitioner’s] first . . . [habeas] peti-
tion based on Nixon’ (citation omitted; internal quotation marks omitted)).
See generally In re Somerville, Docket No. 53586-6-II, 2020 WL 6281524, *4
(Wn. App. October 27, 2020) (decision without published opinion, 14 Wn.
App. 2d 1068) (‘McCoy points to Nixon for the proposition that counsel has
a duty to develop a trial strategy and [to] discuss it with his or her client, but
McCoy . . . does not hold that there is an inherent violation of a defendant’s
autonomy to decide a defense objective if that first duty is violated’).’’ Grant
v. Commissioner of Correction, supra, 345 Conn. 699 n.8.
Accordingly, in those cases in which counsel failed to give a defendant
notice of counsel’s intent to make a concession of guilt or, having notice,
the defendant failed to raise an objection to a concession made by counsel,

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A
Turning to the present case, we first address whether
the petitioner properly preserved for appellate review
his freestanding McCoy claim. The petitioner claims
that, even if he did not expressly plead a violation of
his sixth amendment right to client autonomy, he did
invoke McCoy by name as part of his claim of ineffective
assistance of counsel and that such a reference was
‘‘more than adequate to properly plead the McCoy claim
. . . .’’ The respondent contends that the petitioner’s
‘‘attempt to recast his claim as one of client autonomy
. . . is a new invention on appeal and, therefore, should
be rejected.’’
‘‘It is fundamental that claims of error must be dis-
tinctly raised and decided in the [habeas] court before
they are reviewed on appeal. As a result, Connecticut
appellate courts will not address issues not decided by
the [habeas] court.’’ (Internal quotation marks omitted.)
Bozelko v. Commissioner of Correction, 162 Conn. App.
716, 717 n.1, 133 A.3d 185, cert. denied, 320 Conn. 926,
133 A.3d 458 (2016); see also State v. Miller, 186 Conn.
654, 658, 443 A.2d 906 (1982) (‘‘[o]nly in the most excep-
tional circumstances will this court consider even a
constitutional claim not properly raised and decided
in the trial court’’). The preservation requirement is
codified in Practice Book § 60-5, which provides in rele-
vant part that our appellate courts ‘‘shall not be bound
to consider a claim unless it was distinctly raised at
the trial . . . .’’ The requirement that a claim be dis-
tinctly raised ‘‘means that it must be so stated as to
bring to the attention of the court the precise matter
on which its decision is being asked. 	. 	. 	. 	As our
Supreme Court has explained, [t]he reason for the rule
is obvious: to permit a party to raise a claim on appeal
the proper lens for analysis is an ineffective assistance of counsel claim,
not a freestanding constitutional claim.

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that has not been raised at trial—after it is too late for
the trial court or the opposing party to address the
claim—would encourage trial by ambuscade, which is
unfair to both the trial court and the opposing party.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) U.S. Bank National Assn. v. Iaquessa,
132 Conn. App. 812, 814–15, 34 A.3d 1005 (2012).
A petition for a writ of habeas corpus is ‘‘in the nature
of a pleading . . . . [T]he modern trend, which is fol-
lowed in Connecticut, is to construe pleadings broadly
and realistically, rather than narrowly and technically.
. . . [T]he [petition] must be read in its entirety in such
a way as to give effect to the pleading with reference
to the general theory upon which it proceeded, and do
substantial justice between the parties. . . . As long
as the pleadings provide sufficient notice of the facts
claimed and the issues to be tried and do not surprise
or prejudice the opposing party, we will not conclude
that the [petition] is insufficient to allow recovery.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Anderson v. Commissioner of Correc-
tion, 114 Conn. App. 778, 786, 971 A.2d 766, cert. denied,
293 Conn. 915, 979 A.2d 488 (2009).
Here, the operative amended petition for a writ of
habeas corpus contained three counts. Count one
clearly is labeled as sounding in ineffective assistance
of counsel. Although the petitioner alleges therein that
counsel violated the rule recognized in McCoy, he does
so not in the guise of pleading a freestanding constitu-
tional claim but as one of several examples of allegedly
deficient performance by McDonough. As our Supreme
Court made clear in Grant, however, not every assertion
or allegation that counsel improperly conceded a defen-
dant’s guilt implicates the sixth amendment right to
autonomy at issue in McCoy. Rather, such claims are
more properly analyzed under the Strickland ineffec-
tive assistance of counsel framework, which is precisely

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how the petitioner raised and pleaded his claim before
the habeas court. We disagree with the petitioner’s insis-
tence that the distinction between the right to autonomy
and the right to the effective assistance of counsel is
‘‘illusory . . . .’’ Moreover, given that counts two and
three of the operative petition pleaded in straightfor-
ward fashion freestanding due process claims, it is both
appropriate and logical to conclude that, had the peti-
tioner wanted to raise and plead a freestanding McCoy
claim rather than a Strickland ineffective assistance
claim, his counsel knew how to do so.
We simply are not convinced that the petitioner
pleaded a freestanding McCoy claim, and the habeas
court certainly did not rule on such a claim. This court
previously has declined to review a claim asserting an
improper concession under McCoy where such a claim
was not raised before and decided by the habeas court.
See John B. v. Commissioner of Correction, 194 Conn.
App. 767, 784 n.13, 222 A.3d 984 (2019) (concluding that
record was inadequate to review McCoy claim that was
not raised before or decided by habeas court), cert.
denied, 334 Conn. 919, 222 A.3d 513 (2020); Leon v.
Commissioner of Correction, 189 Conn. App. 512, 521,
208 A.3d 296 (agreeing with respondent that ‘‘petition-
er’s attempt to cast his claim as one of client autonomy,
rather than ineffective assistance [as pleaded], is a new
invention on appeal which should not be entertained’’
(internal quotation marks omitted)), cert. denied, 332
Conn. 909, 209 A.3d 1232 (2019).10 Although we could
end our analysis here, 11 because the United States
10 The only Connecticut appellate cases reaching the merits of an alleged
McCoy violation are Grant v. Commissioner of Correction, supra, 345 Conn.
694–99, and Baltas v. Commissioner of Correction, 210 Conn. App. 167,
173–75, 269 A.3d 957, cert. denied, 342 Conn. 911, 271 A.3d 1039 (2022), in
which this court concluded that the petitioner’s autonomy claim under
McCoy failed because trial counsel did not concede his guilt.
11 In direct criminal appeals, unpreserved constitutional claims may be
reviewed pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015). As our Supreme Court recently reiterated, however, Golding review

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Supreme Court has deemed violations of McCoy to be
structural in nature, we are reluctant to decline review
solely on preservation grounds.
B
Even if we were to conclude that, read broadly, the
petitioner’s invocation of McCoy in his claim of ineffec-
tive assistance of counsel was adequate to have put the
respondent and the habeas court on notice that he was
asserting a freestanding McCoy claim and that the court
impliedly denied that claim when it ruled in the respon-
dent’s favor on the habeas petition, the claim would
nevertheless fail on the record before us. Our Supreme
Court in Grant indicated that courts should strictly
limit application of McCoy to those instances in which
counsel has conceded a client’s guilt in the face of
a client’s direct, clear, and unambiguous objection to
counsel’s so doing, a factual scenario for which the
evidence is lacking in the present case.
It is not disputed that the petitioner did not accept
a pretrial plea agreement against the advice of counsel,
electing to maintain his innocence and proceed to trial.
The petitioner directs our attention to McDonough’s
testimony at the habeas trial in which he agreed with
habeas counsel that the petitioner ‘‘had strong opinions
about his case’’ and stated that he did not ‘‘think [the
petitioner] wanted to concede anything.’’ (Emphasis
added.) The petitioner, however, presented no evidence
that McDonough ever discussed with the petitioner the
content of his closing argument prior to addressing the
jury, including the strategic choice of making certain
is not available to address claims that ‘‘arose during [a petitioner’s] criminal
trial and should have been presented to the habeas court as an additional
basis for granting the writ of habeas corpus. . . . Instead, Golding review
is available in a habeas appeal only for claims that challenge the actions of
the habeas court.’’ (Citation omitted; internal quotation marks omitted.)
Banks v. Commissioner of Correction, 347 Conn. 335, 346–47, 297 A.3d
541 (2023).

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factual concessions. Accordingly, unlike in McCoy, any
concession that McDonough made in addressing the
jury cannot reasonably be viewed as having been done
in the face of a clearly expressed and intransigent objec-
tion by the petitioner. In other words, McDonough did
not override or ignore a clearly expressed directive from
his client not to pursue anything that would undermine
a defense to the charges. Whether McDonough should
have consulted with the petitioner about the strategy
he pursued raises a performance issue that is more
appropriately addressed in the context of a Strickland
type claim. See part II A of this opinion.
C
Finally, even if we overlook the preservation issue
or that the record does not readily support a conclusion
that the petitioner ever made an ‘‘intransigent and
unambiguous objection’’ to his trial counsel regarding
a concession of guilt; McCoy v. Louisiana, supra, 584
U.S. 420; the petitioner’s purported freestanding McCoy
claim also falters on the fact that McDonough did not
expressly concede the petitioner’s guilt to a charged
offense. Having reviewed the closing arguments in their
totality, we conclude that McDonough’s argument can-
not reasonably be characterized as conceding guilt on
the charge of conspiracy to commit burglary in the
first degree. Rather, we construe counsel’s challenged
statements as a strategic attempt to counter the evi-
dence on which the prosecutor relied in his closing
argument by providing the jury with a more favorable
view of that evidence.
‘‘A person is guilty of conspiracy under § 53a-48 (a)
when, with intent that conduct constituting a crime be
performed, he agrees with one or more persons to
engage in or cause the performance of such conduct,
and any one of them commits an overt act in pursuance
of such conspiracy. To establish a violation of § 53a-48

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(a), the state must prove that three essential elements
are satisfied: (1) the accused intended that conduct
constituting a crime would be performed; (2) the
accused formed an agreement with one or more persons
to engage in such conduct; and (3) any one of the cocon-
spirators performed some overt act in furtherance of
the conspiracy. . . . Conspiracy, then, is a specific
intent crime, with the intent divided into two elements:
[1] the intent to agree or conspire and [2] the intent to
commit the offense which is the object of the conspir-
acy.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Pond, 315 Conn. 451, 467–68, 108 A.3d
1083 (2015).
McDonough did not directly or ‘‘effectively’’ concede
the petitioner’s guilt to having engaged in a conspiracy.
To the contrary, McDonough expressly stated several
times in his closing argument that the petitioner was
not guilty. Through his arguments, McDonough tried to
explain away the petitioner’s incriminating statements
in the audio recordings or to establish how these state-
ments could be construed as consistent with his asser-
tion of innocence. McDonough could not argue that the
petitioner did not make the statements but could try
to persuade the jury that the petitioner had acted as
nothing more than a messenger of information between
Dunning and Le, rather than as an actual participant in
the home invasion scheme. Because nothing in McDon-
ough’s closing argument conceded that the petitioner
had the specific intent to commit a burglary, he did not
concede the petitioner’s guilt on the conspiracy charge.
In summary, we conclude that the petitioner failed
to preserve a freestanding McCoy claim because it was
not distinctly raised before or decided by the habeas
court. Moreover, even if the claim was properly pre-
served for appellate review, our plenary review of the
record leaves us unpersuaded that a true McCoy viola-
tion existed on these facts.

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II
The petitioner next claims that the habeas court
improperly determined that McDonough did not pro-
vide ineffective assistance by (1) conceding his guilt
during closing argument to the jury and/or by failing
to object to the prosecutor’s characterization of that
concession during rebuttal argument; (2) failing to
attack adequately the credibility of the petitioner’s
coconspirator, Dunning, during Dunning’s cross-exami-
nation, or to object to the admission into evidence of
an unredacted cooperation agreement between Dun-
ning and the state in exchange for Dunning’s testimony
against the petitioner; (3) not moving to dismiss all
charges on the ground that the state had improperly
monitored and recorded the petitioner’s prison tele-
phone calls during a period of time in which he was
self-represented, and failing to seek to suppress the
state’s use of those recordings; and (4) failing to object
to the trial court’s canvass regarding the petitioner’s
waiver of his right to self-representation. For the rea-
sons that follow, we conclude that the petitioner has
failed to establish that McDonough’s performance was
deficient such that it amounted to constitutionally inef-
fective assistance of counsel.
We begin with well settled principles of law governing
this claim, including our standard of review. ‘‘To suc-
ceed on a claim of ineffective assistance of counsel,
a habeas petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, [supra, 466
U.S. 687]. Strickland requires that a petitioner satisfy
both a performance prong and a prejudice prong. . . .
To satisfy the performance prong, the petitioner must
establish that his counsel made errors so serious that
[counsel] was not functioning as the counsel guaranteed
the [petitioner] by the [s]ixth [a]mendment. . . . The
petitioner must thus show that counsel’s representation

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fell below an objective standard of reasonableness con-
sidering all of the circumstances. . . . [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 chal-
lenged action might be considered sound trial strategy.
. . . Furthermore, the right to counsel is not the right
to perfect counsel. . . .
‘‘To satisfy the prejudice prong, a claimant must dem-
onstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . A reason-
able probability is a probability sufficient to undermine
confidence in the outcome. 	. 	. 	. 	In its analysis, a
reviewing court may look to the performance prong or
to the prejudice prong, and the petitioner’s failure to
prove either is fatal to a habeas petition. . . .
‘‘On appeal, [a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they [are] clearly erroneous, whether those facts consti-
tuted a violation of the petitioner’s rights [to the effec-
tive assistance of counsel] under the sixth amendment
is a mixed determination of law and fact that requires
the application of legal principles to the historical facts
of [the] case. . . . As such, that question requires ple-
nary review by this court unfettered by the clearly erro-
neous standard.’’ (Internal quotation marks omitted.)
Walker v. Commissioner of Correction, 230 Conn. App.
108, 114–15, 328 A.3d 665, cert. denied, 351 Conn. 910,
331 A.3d 158 (2025).
A
The petitioner first argues that McDonough provided
ineffective assistance when he allegedly conceded the
petitioner’s guilt to the conspiracy charge during closing
arguments to the jury and/or by failing to object to the

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White v. Commissioner of Correction
prosecutor’s characterization of McDonough’s argu-
ment as a concession during the prosecutor’s closing
rebuttal argument. The petitioner asserts that there was
no reasonable strategic basis for McDonough’s decision
to concede that the petitioner had passed information
between Le and Dunning or for McDonough’s failure
to object when the prosecutor stated in his rebuttal
argument that McDonough ‘‘just told you [his] client’s
guilty of burglary . . . .’’ The petitioner further asserts
that he was prejudiced by his counsel’s allegedly defi-
cient performance. In light of the circumstances, we
disagree that McDonough’s representation fell below
an objective standard of reasonableness pursuant to
Strickland.
As we discussed in part I of this opinion, we do
not agree that McDonough effectively conceded the
petitioner’s guilt to any charged offense when he
acknowledged that the petitioner had passed along mes-
sages between his alleged coconspirators. Because the
prosecutor in his initial closing argument had replayed
for the jury the audio recordings of the petitioner’s
prison telephone conversations that tended to demon-
strate the petitioner’s prior knowledge of the home
invasion 	plot, 	McDonough 	reasonably 	could 	have
believed that it was essential to the defense to attempt
to mitigate the impact of such evidence by explaining
in his closing argument that, rather than being a partici-
pant/coconspirator, the petitioner had acted only as a
messenger of information. In other words, rather than
conceding guilt, McDonough sought to convince the
jury that the petitioner lacked the requisite specific
intent needed for the jury to find him guilty of the
conspiracy beyond a reasonable doubt.
Furthermore, we are unconvinced that McDonough’s
decision not to raise an objection to the prosecutor’s
characterization of his argument as a concession of
guilt amounted to deficient performance. First, it is not

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entirely clear what the basis of such an objection would
have been. ‘‘[I]t is not improper for the prosecutor to
comment upon the evidence presented at trial and to
argue the inferences that the jurors might draw there-
from.’’ (Emphasis added; internal quotation marks omit-
ted.) Williams v. Commissioner of Correction, 169
Conn. App. 776, 790, 153 A.3d 656 (2016). The prosecu-
tor was clearly seeking to have the jury draw an infer-
ence of guilt on the basis of the petitioner’s recorded
statements, and it was fair rhetoric to suggest that
McDonough’s attempts to explain away the evidence
misfired and amounted to a concession of guilt in the
eyes of the state. Second, ordinarily, ‘‘[t]he decision of
a trial lawyer not to make an objection is a matter of
trial tactics, not evidence of incompetency.’’ (Internal
quotation marks omitted.) Moore v. Commissioner of
Correction, 119 Conn. App. 530, 543, 988 A.2d 881, cert.
denied, 296 Conn. 902, 991 A.2d 1103 (2010). McDon-
ough testified at the habeas trial that he did not antici-
pate that the prosecutor would characterize his argu-
ments as a concession of guilt, suggesting that he did
not view his argument as such, and that objecting to
the prosecutor’s argument could have had the potential
undesirable effect of focusing the jury’s attention on
the prosecutor’s argument.
We have often repeated that ‘‘[c]losing arguments of
counsel . . . are seldom carefully constructed in toto
before the event; improvisation frequently results in
syntax left imperfect and meaning less than crystal
clear. . . . Therefore, because closing arguments often
have a rough and tumble quality about them, some
leeway must be afforded to the advocates in offering
arguments to the jury in final argument. . . . [W]e must
review the comments . . . in the context of the entire
trial.’’ (Internal quotation marks omitted.) Langston v.
Commissioner of Correction, 104 Conn. App. 210, 223–
24, 931 A.2d 967, cert. denied, 284 Conn. 941, 937 A.2d

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697 (2007). Having viewed McDonough’s closing argu-
ments as a whole and in light of the entirety of the trial,
we conclude that the habeas court correctly decided
that his arguments as well as his decision not to object
to the prosecutor’s characterization of them on rebuttal
did not constitute deficient performance. Accordingly,
we need not consider Strickland’s prejudice prong. See,
e.g., Thompson v. Commissioner of Correction, 184
Conn. App. 215, 228 n.5, 194 A.3d 831 (‘‘[b]ecause we
have decided the petitioner’s claim on the basis of the
performance prong, this court need not discuss the
prejudice prong’’ of Strickland), cert. denied, 330 Conn.
930, 194 A.3d 778 (2018).
B
The petitioner next argues that McDonough provided
ineffective assistance of counsel related to his cross-
examination of Dunning. First, he contends that McDon-
ough failed to adequately attack Dunning’s credibility
during his cross-examination, particularly by failing to
expose the severity of the sentence that he avoided by
entering into a cooperation agreement with the state.
Second, 	the 	petitioner 	contends 	that 	McDonough
should have objected to the admission into evidence
of an unredacted copy of that cooperation agreement,
portions of which the petitioner claims could have bol-
stered the credibility of Dunning’s testimony.12 We con-
clude that the petitioner has failed to meet his burden
of establishing deficient performance.
The following additional facts are relevant to this
aspect of the petitioner’s claim. The cooperation agree-
ment between Dunning and the state was entered into
12 The petitioner also argues that McDonough failed to question Dunning
about whether the handgun used during the home invasion was a fake gun.
As we discuss more fully in part III of this opinion, whether the handgun
used by the perpetrators was real was not relevant to the charges or to the
theory of the defense, and, thus, McDonough’s choice not to question Dun-
ning about the gun was not objectively unreasonable, nor did it prejudice
the petitioner.

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evidence by the prosecutor at the petitioner’s criminal
trial. The agreement provided in relevant part that Dun-
ning agreed to ‘‘cooperate completely and truthfully in
any investigations, hearings, or trials relating to [the
petitioner], including the giving of truthful sworn testi-
mony.’’ It further provided that, having pleaded guilty
to the charges against him, Dunning faced a sentence
of between seven and nine years of incarceration fol-
lowed by special parole of between five and six years.
According to the agreement, the sentence, which he
ultimately received, would be determined ‘‘by the sen-
tencing judge, the Honorable Kari Dooley, after consid-
eration of the credibility of his testimony and other
factors . . . .’’
‘‘An attorney’s line of questioning on examination of
a witness clearly is tactical in nature. [As such, this]
court will not, in hindsight, second-guess counsel’s trial
strategy. . . . The fact that counsel arguably could
have inquired more deeply into certain areas, or failed
to inquire at all into areas of claimed importance, falls
short of establishing deficient performance.’’ (Internal
quotation marks omitted.) Ruiz v. Commissioner of
Correction, 195 Conn. App. 847, 861, 227 A.3d 1049,
cert. denied, 335 Conn. 915, 229 A.3d 729 (2020). ‘‘Once
an attorney makes an informed, strategic decision
regarding how to cross-examine a witness, that decision
is virtually unchallengeable.’’ (Internal quotation marks
omitted.) Taft v. Commissioner of Correction, 159
Conn. App. 537, 557, 124 A.3d 1, cert. denied, 320 Conn.
910, 128 A.3d 954 (2015).
As the habeas court aptly observed, during his cross-
examination of Dunning, McDonough pursued a strat-
egy of discrediting Dunning and attacking his credibility
by eliciting testimony demonstrating that Dunning had
lied to the police until the state offered him a coopera-
tion agreement and by emphasizing that Dunning had

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received a very favorable outcome in exchange for testi-
fying that he committed the home invasion with the
petitioner and Le. 13 McDonough asked Dunning about
the specific charges against him that were dropped as
a result of the cooperation agreement. Although he did
not ask or present evidence that the charges Dunning
avoided could have resulted in a maximum sentence
of ninety years of incarceration, McDonough empha-
sized to the jury that Dunning had faced multiple serious
charges and had received a very favorable deal by agree-
ing to testify against the petitioner. We cannot conclude
that McDonough’s failure to ask Dunning about the
specific potential sentences attached to the charges
that he avoided rendered his cross-examination less
effective in the eyes of the jurors such that his perfor-
mance was constitutionally deficient. Having reviewed
both the trial and habeas proceedings, we conclude that
the petitioner failed to overcome the presumption that
McDonough’s examination of Dunning fell within the
wide range of acceptable performance. See Strickland
v. Washington, supra, 466 U.S. 689 (‘‘a court must
indulge a strong presumption that counsel’s conduct
13 The following colloquy illustrates McDonough’s efforts to impeach the
credibility of Dunning by highlighting the nature of the deal he received
from the state:
‘‘[McDonough]: Why did it take you all these years to enter a guilty plea?
‘‘[Dunning]: Trying to fight the best way I could. It didn’t work in my
favor, so I took the best option I could.
‘‘[McDonough]: You were looking for a good deal from the state,
weren’t you?
‘‘[Dunning]: Yes. . . .
‘‘[McDonough]: But this is a better offer than they gave you previously, cor-
rect?
‘‘[Dunning]: Yes.
‘‘[McDonough]: What were you charged with originally?
‘‘[Dunning]: Home invasion, burglary one, robbery one, larceny one, threat-
ening one, kidnapping one.
‘‘[McDonough]: And all those charges, other than [conspiracy to commit
burglary in the first degree] have been—I guess they’re not going to be pur-
sued?
‘‘[Dunning]: Yes.’’

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falls within the wide range of reasonable professional
assistance’’).
We also agree with the habeas court and the respon-
dent that the petitioner failed to demonstrate that
McDonough’s decision not to object to the admission
into evidence at trial of Dunning’s cooperation agree-
ment with the state or that McDonough’s failure to
ask that the court admit only a redacted copy of the
agreement was objectively unreasonable or prejudicial
to the petitioner. The petitioner argues that the coopera-
tion agreement stated that Dunning had agreed to testify
truthfully and that the same judge presiding over the
petitioner’s criminal trial would determine whether
Dunning’s testimony was credible. According to the
petitioner, ‘‘[t]he lack of any follow-up from the trial
court about Dunning’s credibility is likely to have misled
the jury into concluding that the trial court found Dun-
ning to be credible,’’ and, as a result, some jurors may
have ‘‘abdicated their responsibility to independently
evaluate Dunning’s credibility.’’ McDonough testified at
the habeas trial that he did not seek redaction of the
cooperation agreement because he did not want the
jury wondering what may have been redacted. Rather
than object outright to its admission, McDonough used
Dunning’s cooperation agreement with the state to high-
light his motivation for providing testimony against the
petitioner, thereby impeaching his credibility. More-
over, the petitioner’s argument that McDonough’s fail-
ure to seek redactions of portions of the agreement
somehow prejudiced the petitioner in the eyes of the
jurors relies on unfounded speculation and, accord-
ingly, we reject it. See, e.g., Walker v. Commissioner
of Correction, supra, 230 Conn. App. 127 (‘‘petitioner
cannot rely on mere conjecture or speculation to satisfy
either the performance or prejudice prong but must
instead offer demonstrable evidence in support of his
claim’’ (internal quotation marks omitted)).

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C
The petitioner also argues that McDonough provided
ineffective assistance by failing to move for the dis-
missal of all charges on the ground that the state had
monitored and recorded his prison telephone calls dur-
ing the period of time in which the petitioner was self-
represented; see footnote 1 of this opinion; or to seek
to suppress the state’s use of those recordings, which
the petitioner argues provided the state with insight
into his trial strategy. We agree with the habeas court’s
determination that the petitioner failed to meet his bur-
den of proof with respect to this claim.
McDonough testified at the habeas trial that, although
he could not specifically recall the content of each of
the phone recordings that were admitted into evidence,
he remembered that the recordings contained conversa-
tions that would have been helpful to the prosecution.
He stated that he did everything he could think of to
keep the recordings from being admitted into evidence
but that the court overruled his objections. When asked
if he considered moving to dismiss the case or seeking
a mistrial on the ground that the state’s use of the
recordings constituted an interference with the petition-
er’s right to prepare and present a defense, McDonough
indicated that the petitioner had made some of the
recordings before he was arrested. Moreover, McDon-
ough stated that the petitioner had chosen to make the
calls on an open line that the state was entitled to record
and that self-represented litigants are permitted to make
two legal calls per month that are not recorded.
On the basis of our review of the record, we conclude
that the petitioner has failed to identify any evidence
in support of his argument that the recordings admitted
into evidence at trial potentially interfered with his right
to prepare and present a defense and, thus, would have

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provided the basis for McDonough to seek their sup-
pression on that ground or a basis for a motion to
dismiss or a postverdict motion. In his appellate brief,
the petitioner clarifies that his argument regarding the
admission of the phone recordings is limited ‘‘to those
calls made while he was a self-represented litigant in
the underlying criminal proceedings.’’ It is undisputed
that two of the recordings at issue were made prior to
the petitioner’s arrest on the charges at issue in this
case when he was neither a self-represented party nor
preparing a defense. A third recording occurred while
the petitioner was represented initially by Attorney
John Cizik, Jr., of the Office of the Public Defender.
See footnote 2 of this opinion.
With 	respect 	to 	the 	two 	remaining 	phone 	call
recordings, we agree with the respondent that the peti-
tioner has not identified any specific portion of those
recordings that potentially could have provided the
state with insight into the petitioner’s trial strategy,
nor did the habeas court find that any portion of the
recordings evinced such strategy, if it existed. More-
over, rather than reflect possible trial strategy, the two
recordings that occurred during the period of time that
the petitioner was self-represented formed the basis of
the charge of tampering with a witness. The habeas
court credited McDonough’s testimony that, ‘‘in several
of the recorded telephone calls, the petitioner requested
others to convince Dunning to not testify against him
and to come up with a false alibi for him. [McDonough]
indicated that, although the state could not listen to
the telephone calls of a [self-represented] litigant for
purposes of assisting with its strategy, the state could
use the petitioner’s inculpatory statements that involved
threatening and tampering with a witness.’’
To put it simply, we agree with the habeas court’s
conclusion that ‘‘[t]he credible evidence indicates that
[McDonough] did attempt to suppress the telephone

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calls, and the trial court had valid reasons for denying
counsel’s motion to do so. Moreover, the petitioner
failed to prove that he was prejudiced by demonstrating
that, had counsel taken additional steps in his attempt
to exclude the recordings, he would have been success-
ful and there is a reasonable probability that the out-
come of the trial would have been different.’’ Accord-
ingly, we reject this aspect of the petitioner’s ineffective
assistance of counsel claim.
D
The petitioner’s final argument in support of his inef-
fective assistance of counsel claim is that McDonough
provided ineffective assistance by failing to object dur-
ing the trial court’s canvass of the petitioner regarding
his waiver of his right to self-representation and the
court’s appointment of McDonough, when he was act-
ing as standby counsel, to full counsel. We disagree.
The following additional facts are relevant to our
consideration of this aspect of the petitioner’s ineffec-
tive assistance of counsel claim. As previously noted,
in January, 2017, shortly before his criminal trial was
to begin, the petitioner filed a motion seeking to waive
his right to self-representation and to have counsel
appointed for him. The court, Schuman, J., heard argu-
ment on the motion on January 13, 2017. After hearing
from both parties, the court stated to the petitioner that
he could either choose to continue to represent himself,
or the court would appoint McDonough to represent
him. The respondent stated: ‘‘I’ll take the representa-
tion.’’ The following colloquy ensued:
‘‘The Court: All right. So, just to be clear—and I think
I will ask a few other questions, but you would like me
to appoint [McDonough] to represent you.
‘‘[The Petitioner]: Well, I mean, I will prefer a different
attorney, but as you emphasized that I can’t choose,

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which I’m not looking to choose, I’m just asking for new
appointment of a different counsel in which I believe
it would only take . . . a different attorney thirty days
to go through the case as well.
‘‘The Court: I don’t know about that. But I just want
to make sure now that you and—I realize that I haven’t
given you an unlimited choice, I’ve really given you two
choices, but I just want to make sure that you’re making
this choice voluntarily . . . it’s not the choice that you
came to court seeking, but, given the choices I’ve given
you, is anyone forcing you to waive your right to repre-
sent yourself?
‘‘[The Petitioner]: Well, I’m not being forced, but I
feel like I’m being forced to take the representation of
this attorney—yes, I do.
‘‘The Court: Well, then . . . I can’t find that you’re
waiving your right to represent yourself . . . and I
don’t want to say that you’ve waived it unless you’re
doing so voluntarily because then . . . we’ll be in trou-
ble down the road.
‘‘[The Petitioner]: To alleviate more complications,
yes, I knowingly and intelligently waive my right to pro
se representation.
‘‘The Court: All right. And I just want to make sure you
realize that once you do waive your right to represent
yourself, you are entitled to appointment of competent
counsel but that you can’t then come back to court and
say I want to represent myself again. Basically, you’re
giving up your right to represent yourself and agreeing
to be represented by competent counsel. Do you under-
stand that?
‘‘[The Petitioner]: Yes, I do.
‘‘The Court: Okay, all right, so then Mr. McDonough,
I am going to appoint you to represent [the petitioner]—
full appointment.

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‘‘[McDonough]: Yes, Your Honor.’’
‘‘It is well established that [t]he right to counsel and
the right to self-representation present mutually exclu-
sive alternatives. A criminal defendant has a constitu-
tionally protected interest in each, but since the two
rights cannot be exercised simultaneously, a defendant
must choose between them. When the right to have
competent counsel ceases as the result of a sufficient
waiver, the right of self-representation begins. . . . Put
another way, a defendant properly exercises his right
to self-representation by knowingly and intelligently
waiving his right to representation by counsel. . . .
State and federal courts consistently have discussed
the right to self-representation in terms of invoking or
asserting it . . . and have concluded that there can be
no infringement of the right to self-representation in
the absence of a defendant’s proper assertion of that
right.’’ (Internal quotation marks omitted.) State v. Pas-
chal, 207 Conn. App. 328, 333, 262 A.3d 893, cert. denied,
340 Conn. 902, 263 A.3d 387 (2021), cert. denied,
U.S. 	, 142 S. Ct. 1395, 212 L. Ed. 2d 341 (2022).
The petitioner argues on appeal that, to the extent the
trial court’s canvass of him can be construed as requir-
ing him to agree to give up his right to represent himself
in the future in order to reassert his right to counsel,
that was a legally incorrect canvass, and McDonough
should have raised an objection to the canvass. The
petitioner contends that McDonough’s failure to do so
constituted deficient performance that was prejudicial
‘‘because there is a reasonable probability that—had
the court properly canvassed him—the petitioner would
have invoked his right to [represent] himself at the
criminal trial.’’ The petitioner further maintains that this
court should presume prejudice because his having to
proceed to trial with counsel when he wanted to repre-
sent himself amounted to structural error.

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The petitioner has provided no authority for the prop-
osition that McDonough had any duty or obligation
under the sixth amendment to object to the trial court’s
canvass, or that the court would have permitted him
to do so. At the time the court conducted the canvass,
the petitioner was self-represented and McDonough
was standby counsel. More importantly, the petitioner’s
insistence that he would have represented himself at
trial had he been permitted to do so is belied by the
record. Specifically, prior to trial, the court conducted
a hearing on a motion McDonough had filed to withdraw
from representing the petitioner on the basis of the
petitioner’s expressed dissatisfaction with McDonough’s
representation. In addition to hearing from both coun-
sel, the court heard from the petitioner, who stated
on the record that he would like the court to grant
McDonough’s motion. When the court asked the peti-
tioner what he would like to happen if McDonough
were allowed to withdraw, the petitioner told the court
that he would like new counsel appointed. He did not
ask to proceed to trial as a self-represented party.
We agree with the respondent that this colloquy illus-
trates the petitioner’s clearly expressed desire to be
represented by counsel at trial. He cannot now claim
that he was prejudiced by not being able to represent
himself because he has failed to show that he would
have chosen to do so. We conclude that the habeas
court properly denied this aspect of the petitioner’s
claim of ineffective assistance on the ground that the
petitioner never asserted his right to self-representation
after McDonough was appointed to represent him; see
State v. Paschal, supra, 207 Conn. App. 333; and no
credible evidence was presented to the habeas court
that the petitioner believed that he irrevocably had
given up the right to self-representation as a result of
the trial court’s canvass.

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III
Finally, the petitioner argues that the habeas court
improperly excluded as irrelevant Dunning’s proffered
testimony at the habeas trial that the handgun used
during the commission of the underlying crimes was
fake. The respondent asserts that the court properly
exercised its discretion by refusing to consider specula-
tive testimony regarding the gun’s authenticity.
The following additional facts and procedural history
are relevant to our resolution of this claim. As discussed
in part II B of this opinion, the petitioner argued in
support of his claim of ineffective assistance of criminal
trial counsel that counsel had failed ‘‘to adequately
cross-examine, impeach, or otherwise undermine’’ Dun-
ning’s credibility. Footnote 3 of this opinion. Dunning
had testified at the criminal trial that Le supplied the
gun that was used during the home invasion and that
Dunning was the person who held the gun pointed at
the victim throughout the incident. The victim testified
at the criminal trial, consistent with Dunning, that one
of the perpetrators had stayed with him at all times
with a gun pointed at him. When asked to describe
the gun, the victim stated that it was ‘‘definitely not a
revolver’’ and that he believed it was a semiautomatic
weapon. The petitioner did not raise as a defense that
the gun used was not a weapon ‘‘from which a shot
may be discharged’’; General Statutes § 53a-3 (6); nor
was any evidence presented during the criminal trial
that the gun used during the home invasion was inopera-
ble. Additionally, among the items that were taken from
the victim’s home and in possession of the perpetrators
during the home invasion were two long guns. The
victim provided testimony about the long guns, includ-
ing that they were operable.
At the habeas trial, the petitioner sought to elicit
testimony from Dunning on direct examination that the

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weapon used during the home invasion was not a ‘‘real
gun . . . .’’ The following colloquy ensued:
‘‘[The Petitioner’s Counsel]: Okay. Did—did the—did
you have a real gun during the home invasion?
‘‘[Dunning]: No.
‘‘[The Respondent’s Counsel]: Objection.
‘‘The Court: Okay. So, wait a minute, Mr. Dunning.
So, the objection?
‘‘[The Respondent’s Counsel]: Relevance.
‘‘The Court: So, what’s the relevance, Attorney?
‘‘[The Petitioner’s Counsel]: Your Honor, the rele-
vance is, I believe, [Dunning] would testify that it’s a
fake gun. It’s alluded to throughout the transcripts that,
I believe, that’s what he testified to at trial. I—I believe
[the prosecutor] makes reference to it, although I
couldn’t be 100 percent sure of that. But it’s relevant
because the—[petitioner] was sentenced in accordance
with the robbery in the first degree and the home—and
the home invasion sentencing enhancement, involving
the use or threat of a gun that’s capable of firing a shot.
So, I’m trying to figure out what kind of fake gun it is.
‘‘The Court: All right. So, I’m going to sustain the
objection. We’ve already had the trial; we’re not retrying
here. We’re—you know, your claims are regarding inef-
fective assistance of counsel and due process claims,
but.
‘‘[The Petitioner’s Counsel]: Yes.
‘‘The Court: So—
‘‘[The Petitioner’s Counsel]: The—the only relevance,
I’ll just offer—and I understand the objection was sus-
tained, but just for—for the record, is that, had [McDon-
ough] further explored whether the gun was fake, it’s

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White v. Commissioner of Correction
possible that he could have objected or moved for—
made various motions regarding, you know, whether
[the petitioner] was not—
‘‘The Court: All right. So, you’re testifying now.
‘‘[The Petitioner’s Counsel]: Okay.
‘‘The Court: So, the—
‘‘[The Petitioner’s Counsel]: Well—
‘‘The Court: Your exception is noted . . . .
‘‘[The Petitioner’s Counsel]: Thank you, Your Honor.’’
Our standard of review and governing legal principles
regarding evidentiary claims are well settled. ‘‘We
review the [habeas] court’s decision to admit [or
exclude] evidence, if premised on a correct view of the
law . . . for an abuse of discretion. . . . We will make
every reasonable presumption in favor of upholding the
[habeas] court’s ruling, and only upset it for a manifest
abuse of discretion. . . . The [habeas] court has wide
discretion to determine the relevancy [and admissibil-
ity] of evidence . . . . In order to establish reversible
error on an evidentiary impropriety . . . the [peti-
tioner] must prove both an abuse of discretion and a
harm that resulted from such abuse.’’ (Internal quota-
tion marks omitted.) Glen S. v. Commissioner of Cor-
rection, 223 Conn. App. 152, 161–62, 307 A.3d 951, cert.
denied, 348 Conn. 951, 308 A.3d 1038 (2024).
‘‘Evidence that is not relevant is inadmissible. . . .
Evidence is relevant if it has any tendency to make the
existence of any fact that is material to the determina-
tion of the proceeding more probable or less probable
than it would be without the evidence. . . . Relevant
evidence is evidence that has a logical tendency to aid
the trier in the determination of an issue.’’ (Internal
quotation marks omitted.) Spearman v. Commissioner
of Correction, 164 Conn. App. 530, 576, 138 A.3d 378,

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cert. denied, 321 Conn. 923, 138 A.3d 284 (2016). ‘‘It is
the obligation of the party seeking to have the evidence
admitted to demonstrate its relevance to the habeas
court. . . . Unless such a proper foundation is estab-
lished, the evidence . . . is irrelevant.’’ (Citation omit-
ted; internal quotation marks omitted.) Angel C. v. Com-
missioner of Correction, 226 Conn. App. 837, 846, 319
A.3d 168, cert. denied, 350 Conn. 908, 323 A.3d 1091
(2024).
As charged in the present case, § 53a-134 (a) (2)
required proof that a defendant was ‘‘armed with a
deadly weapon’’ during the commission of a robbery.
The phrase, ‘‘armed with a deadly weapon,’’ means that
a defendant physically possessed a weapon, ‘‘whether
loaded or unloaded, from which a shot may be dis-
charged . . . .’’ General Statutes § 53a-3 (6); see State
v. Edwards, 325 Conn. 97, 143, 156 A.3d 506 (2017).
We agree with the respondent that the petitioner has
failed to establish that the habeas court’s decision not
to admit Dunning’s testimony on relevance grounds
amounted to a manifest abuse of its discretion. When
asked by the court to explain how the inquiry into the
nature of the handgun Dunning used during the home
invasion or its operability was relevant, issues not
raised or contested during the criminal trial, the
response by the petitioner’s counsel was equivocal at
best. He admitted that he was unsure whether there
was anything in the criminal trial record that would
support such an inquiry. The operability of the handgun,
however, was not an essential part of the state’s case.
For the conviction under § 53a-134 (a) (4), there was
no requirement that the perpetrator be armed with an
operable firearm. The only requirement is that the per-
petrator display or threaten to use something that, by

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word or deed, he represents to be a firearm. 14 It was
also not necessary for the state to show that the hand-
gun used, which was never recovered, was operable to
support a conviction under § 53a-134 (a) (2). Under
that subsection, the state needed to show only that the
perpetrators were ‘‘armed’’ with, meaning in possession
of, an operable firearm. See, e.g., State v. Anderson,
178 Conn. 287, 294, 422 A.2d 323 (1979) (explaining
that ‘‘armed’’ is commonly interpreted as requiring that
weapon be in one’s possession and, thus, ‘‘it is not
necessary for a weapon to be exhibited, displayed, uti-
lized or referred to in order for one to be considered
‘armed’ ’’). Evidence was admitted at trial through the
victim’s testimony that the perpetrators had in their
possession the victim’s long guns, which they stole dur-
ing the home invasion, and that the victim had recently
used those guns, from which the jury could reasonably
infer operability. See, e.g., State v. Jarmon, 195 Conn.
App. 262, 268, 224 A.3d 163 (operability of firearm can
be proven by either circumstantial or direct evidence),
cert. denied, 334 Conn. 925, 223 A.3d 379 (2020).
Finally, to the extent that testimony regarding the
gun used during the home invasion may have been
relevant to the petitioner’s claim that McDonough was
ineffective because he failed to argue that the home
invasion and robbery were not accomplished using a
firearm; see footnote 3 of this opinion; the habeas court
determined that the petitioner had later abandoned that
claim, and he has not challenged that aspect of the
court’s decision. Accordingly, even if the inquiry were
relevant, the court’s exclusion of Dunning’s testimony
regarding the gun was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
14 Although a defendant could raise as an affirmative defense that the
firearm used in a criminal offense was not a weapon from which a shot
could be discharged; see General Statutes § 53a-3 (6); the petitioner never
asserted this defense in the criminal proceedings.