Opinion
CV154006830S
01-18-2019
Billy WRIGHT (Inmate #322650) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
On August 17, 2018, the investigator for petitioner’s counsel left a subpoena for Denard Lester at an address, presumably his residence, obtained through investigative sources. The subpoena indicated that Mr. Lester was to report to this court on August 30, 2018. Mr. Lester did not appear on that date. Pursuant to General Statutes § 52-144, a subpoena is valid for sixty (60) days. Therefore, the subpoena expired on or about October 29, 2018, and no longer is valid.
The subpoena was not served on Mr. Lester, but was given to his apparent companion (Ms. Washington). The petitioner has presented no proof that Mr. Lester himself actually received the subpoena, although the investigator’s affidavit dated September 28, 2018, indicates that Mr. Lester was informed via a telephone conversation, as facilitated by Ms. Washington, of the subpoena, the date and time to appear at court, and that it was being left with Ms. Washington at their apparent residence. See, e.g., State v. Burrows, 5 Conn.App. 556, 559, 500 A.2d 970 (1985) (General Statutes § 52-143 "does not use the words ‘personal service, ’ or the words ‘in-hand service.’ Acceptance of ... a strict reading of the quoted words [i.e., ‘upon whom a subpoena is served’] would render it virtually impossible to effect service upon a witness who is determined to be recalcitrant or determined to insulate himself from a court appearance. Service of a subpoena ‘upon’ a person does not require physical acceptance of it, if the person is given notice of it and its contents ... This interpretation of the quoted words comports with the service of civil process, which may be by either abode or manual service ..."), cert. denied, 199 Conn. 806, 508 A.2d 33 (1986). "Thus, abode service of the subpoena authorizes the court to issue a capias only if the party requesting the capias establishes that the absentee witness received the subpoena and knows of the contents of the subpoena. See State v. Frye, 182 Conn. 476, 483, 438 A.2d 735 (1980) (leaving subpoena with witness’ wife at his abode without proof that witness knew contents of subpoena, although he confirmed by telephone that he had received it, was not adequate service under § 52-143)." Moye v. Commissioner of Correction, 168 Conn.App. 207, 239, 145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).
There is no evidence showing that Mr. Lester is actively avoiding service. The investigator’s affidavit shows that Ms. Washington informed the investigator that Mr. Lester was at a hospital with significant health issues and was on a kidney transplant waiting list. Mr. Lester spoke with the investigator via a telephone call, as facilitated by Ms. Washington, which is not indicative of avoidance.
The issuance of a capias is an extraordinary measure which only should be issued if all statutory requirements are met, which this court does not find the petitioner has met. See, e.g., Greene v. Commissioner of Correction, 330 Conn. 1, 31-34, 190 A.3d 851 (2018) (affirming habeas court not issuing a capias for a properly subpoenaed witness; no evidence failure to comply with subpoena was not warranted, and petitioner partially responsible for witness not being present because no efforts to contact subpoenaed witness and ensure presence at trial). The petitioner has not demonstrated Mr. Lester’s absence was not warranted due to health or medical circumstances. Furthermore, the petitioner has also not demonstrated any efforts since August 17, 2018, to contact Mr. Lester, ensure his presence at the habeas trial, or again serve him subsequent to October 29, 2018, when the subpoena expired.
Given the foregoing, the request for issuance of a capias is denied.
It is so ordered.