Houghtaling v. Commissioner of Correction ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
RICHARD HOUGHTALING v. COMMISSIONER
OF CORRECTION
(AC 42332)
Bright, C. J., and Prescott and Suarez, Js.
Syllabus
The petitioner, who had been convicted, on a plea of nolo contendere, of
various crimes related to his involvement in a marijuana grow operation,
sought a writ of habeas corpus, claiming that his trial counsel, S, had
provided ineffective assistance during the litigation of the petitioner’s
motion to suppress evidence in the underlying criminal proceeding. The
petitioner, who was the owner of the property where the grow operation
was conducted, and his brother-in-law, E, were arrested when they
arrived at the property while a narcotics task force was present as part
of a marijuana eradication operation. The petitioner leased the property
to P, who was also arrested. The habeas court rendered judgment deny-
ing the petition, from which the petitioner, on the granting of certifica-
tion, appealed to this court. Held:
1. The habeas court properly concluded that the petitioner failed to prove that
S rendered deficient performance in litigating the motion to suppress:
a. The petitioner could not prevail on his claim that S rendered deficient
performance when he failed to inform the petitioner of his right to testify
at the suppression hearing; the court did not credit the petitioner’s claim
that S advised him not to testify at the hearing and found, to the contrary,
that S’s testimony that the petitioner had instructed him not to call the
petitioner as a witness at the hearing was credible.
b. The habeas court properly concluded that S’s decision not to call P
to testify at the hearing did not fall below an objective standard of
reasonableness, as S was concerned that evidence connected to P’s
testimony, although it may have supported the petitioner’s claim of
standing, could have further implicated the petitioner in criminal activity
and S credibly testified that the petitioner had insisted that P not be
called as a witness.
c. The petitioner’s claim that S’s asserted justifications for his approach
to the suppression hearing were not reasonable was unavailing, as the
habeas court concluded and the record demonstrated that S’s decision
to minimize the petitioner’s involvement in the property was reasonably
based on the information provided to him by the petitioner, S’s decision
not to involve P in the suppression hearing was reasonably based on
information the petitioner had told S, including that P posed significant
safety concerns for the petitioner and his wife, and on S’s belief that
P’s testimony could have further implicated the petitioner in the grow
operation and affected the terms of a plea bargain, and S’s strategy in
seeking to avoid implicating E was reasonable given the petitioner’s
stated desire to S not to implicate E, who faced possible, ongoing expo-
sure under federal drug laws at the time of the suppression hearing.
d. S’s briefing on the issue of the petitioner’s standing regarding the
suppression of evidence, which relied on Baker v. Carr (369 U.S. 186),
sufficiently supported the argument in favor of the petitioner’s standing
and was informed by the facts of the case and the information given to
him by the petitioner and, thus, the petitioner’s claim that S’s failure
to cite to Katz v. United States (389 U.S. 347) constituted deficient
performance was unavailing.
2. The petitioner could not prevail on his claim that the habeas court deprived
him of his state and federal constitutional rights to due process of law
when it characterized in its memorandum of decision a full exhibit
admitted at the habeas trial without limitation as one admitted for only
a limited purpose, without notice to the petitioner or an opportunity to
be heard: although the court erred in stating in its memorandum of
decision that the exhibit was admitted for a limited purpose, it had
indicated to the petitioner on the first day of a three day trial that
spanned three months that it viewed the exhibit as lacking probative
value, thereby providing the petitioner with two months to gather and
to present additional evidence; moreover, this court declined to review
the claim under the plain error doctrine, as the habeas court’s limited
use of an exhibit it found to have little or no weight did not affect the
fairness or integrity of the proceedings or result in manifest injustice
to the petitioner.
3. Although the habeas court erred by excluding as an exhibit a letter to
the petitioner from the Internal Revenue Service that was addressed to
the property searched by law enforcement, the petitioner failed to meet
his burden of proof that the exclusion of the exhibit harmed him in a
way that made it more probable than not that the outcome of the habeas
trial would have been different had the exhibit been admitted; in his
principal brief, the petitioner failed to analyze whether the court’s error
in failing to admit the letter affected its conclusion as to either the
deficient performance or the prejudice prong of Strickland v. Washing-
ton (466 U.S. 668), and consequently, failed to identify any cognizable
harm from the habeas court’s erroneous evidentiary ruling; moreover,
this court declined to review the petitioner’s argument regarding harm
raised for the first time in his reply brief.
Argued October 8, 2020—officially released March 16, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Hon. Edward J. Mullarkey, judge
trial referee; judgment denying the petition, from which
the petitioner, on the granting of certification, appealed
to this court. Affirmed.
Temmy Ann Miller, with whom, on the brief, was
Daniel M. Erwin, for the appellant (petitioner).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Anne Mahoney, state’s attor-
ney, and Jo Anne Sulik, senior assistant state’s attorney,
for the appellee (respondent).
Opinion
BRIGHT, C. J. The petitioner, Richard Houghtaling,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus challenging his
judgment of conviction arising out of a marijuana grow
operation. The petitioner claims on appeal that the
habeas court improperly (1) denied his claim of ineffec-
tive assistance of trial counsel in litigating the petition-
er’s motion to suppress in the criminal proceeding that
resulted in the conviction that is the subject of his
habeas petition, (2) deprived him of his state and federal
constitutional rights to due process and committed
plain error when it changed, without notice or any
opportunity to be heard, a full exhibit admitted without
limitation to one admitted only for a limited purpose,
and (3) excluded from evidence a letter from the Inter-
nal Revenue Service (IRS) that was offered by the peti-
tioner.1 We disagree with the petitioner’s first and sec-
ond claims, but agree with the petitioner’s third claim.
Nevertheless, we conclude that the habeas court’s error
as to the petitioner’s third claim was harmless and,
therefore, we affirm the judgment of the habeas court.
The following facts, as described by our Supreme
Court in its decision on the petitioner’s direct appeal,
are relevant to our disposition of this appeal. ‘‘On
August 9, 2010, the Statewide Narcotics Task Force
(task force)—comprised of federal, state, and local law
enforcement officers—was conducting a marijuana
eradication operation in the northeast corner of the
state. The operation was comprised of two spotters
who were patrolling the area in a helicopter and a
ground team consisting of several members. The task
force had performed marijuana eradication missions
earlier in the day, and, shortly after noon, the helicopter
team notified the ground team of a suspected large crop
of marijuana at 41 Raymond Schoolhouse Road in the
town of Canterbury (property). From the air, the spot-
ters were able to see dozens of marijuana plants within a
fenced-in pool area behind the house, as well as several
plants along the outside of the fence. The ground team
arrived at the property approximately thirty minutes
later in separate, undercover and unmarked vehicles,
which bore no resemblance to police vehicles.
‘‘The property consisted of 5.6 acres and was largely
surrounded by dense forest. The only means of ingress
and egress was a narrow dirt driveway more than 100
feet long and lined with trees on both sides. There were
signs marked No Trespassing posted on trees along the
driveway, and, about halfway down the driveway, there
was a metal gate that could block the driveway but that
was not closed. . . . As the members of the ground
team approached the home, they saw no occupant vehi-
cles or persons, smelled nothing, and heard nothing.
The officers knocked on the front door but received
no answer.
‘‘The ground team then left the front door and pro-
ceeded toward the back door. The air team had told
the ground team that, if they continued around the side
of the house, they would see a whole lot of marijuana
right out in the open. Before reaching the back door,
the officers saw a pool area with dozens of marijuana
plants inside and additional plants surrounding the area.
The officers then continued to search the property,
including a greenhouse located behind the pool, near
the rear of the property. As the police approached the
greenhouse, they noticed it was still under construction.
The ends of the structure had no side walls, and there
were piles of lumber on the ground nearby. Inside the
greenhouse, the police were able to see numerous mari-
juana plants and two men, one of whom was later identi-
fied as [Thomas] Phravixay.
‘‘Both of the men were given Miranda [v. Arizona,
384 U.S. 436, 478–79, 86 S. Ct 1602, 16 L. Ed. 2d 694(1966)] warnings and agreed to answer questions.
Phravixay told the officers he was renting the home
and later gave the officers written consent to search
the property. The search ultimately revealed more than
1000 marijuana plants.
‘‘While two members of the ground crew were
returning to their vehicles to obtain an evidence kit,
they noticed a white van pull into the driveway of the
property, where the unmarked police vehicles were
parked, and then reverse back into the street and depart
[v]ery quickly. The helicopter team also spotted the van
enter the driveway and radioed the ground team to alert
all of the officers concerning the van’s presence. The
officers were suspicious of the van, believing that its
occupants might be involved in the marijuana grow
operation, and decided to pursue the van. By the time
the police got into a car, headed up the driveway after
the van, and arrived out on the road, the van was already
parked at the side of the road, approximately one tenth
of one mile away, facing back toward the driveway.
‘‘The officers drove to the location where the van
was parked, exited their vehicle, and approached the
van. . . . The van was occupied by two males—the
[petitioner] was in the driver’s seat and another person
sat in the passenger seat. Upon determining that the
occupants of the van posed no threat, the officers holst-
ered their weapons and asked the [petitioner] for identi-
fication. When the officers asked the [petitioner] why
he had pulled into the driveway and then left abruptly,
he stated that he was going to visit a friend but left
when he saw that the driveway was full of cars he did
not recognize. As the trial court found, the [petitioner’s]
answers to the officers’ questions were evasive, and,
although he claimed to be visiting a friend, he would
not name the friend. While the police were questioning
the [petitioner], they were able to observe from outside
the van that it contained lumber and irrigation piping
similar to that which was used to construct the green-
house. The officers then handcuffed the [petitioner] and
the passenger, and brought them back to the property.
‘‘Upon arriving back at the property, the police
advised the [petitioner] of his Miranda rights. The [peti-
tioner] at first refused to speak with the police but then
agreed to once the officers told him that Phravixay had
consented to their search of the property, that they had
found mail with the [petitioner’s] name on it in the
house and in the mailbox, and that Phravixay had identi-
fied the [petitioner] as the homeowner and the person
who leased the property to him. The [petitioner] told
the officers he had purchased the home in the prior
year but could not afford the mortgage payments, so,
to help cover his expenses, he leased the property to
Phravixay, whom he had known for several years. The
[petitioner] said Phravixay had paid rent only periodi-
cally, and the [petitioner] had been helping Phravixay
cultivate marijuana for the previous four or five months
to recoup some of [his] money. Although the [petitioner]
said he was helping with the cultivation, he stated that,
up until [that day, he] didn’t realize the extent of the
grow operation. I own my own business and didn’t really
think much of what was going on at the house . . . .
‘‘The [petitioner] initially was charged with numerous
drug related offenses, and he moved to suppress (1) all
evidence seized by law enforcement officers in connec-
tion with the warrantless search and seizure conducted
at [the] property on August 9, 2010; (2) all statements
made by [the petitioner] and others, including . . .
Phravixay, as a result of the illegal search and seizure;
and (3) the fruits of any and all other evidence obtained,
derived or developed as a result of the illegal search
and seizure and illegally obtained statements . . . .
The [petitioner] claimed that the court must suppress
this evidence because the police had violated his fourth
amendment rights when they failed to obtain a warrant
before searching the property and when they detained
him in his van, which he claims was done without rea-
sonable suspicion that he had engaged in criminal activ-
ity.
‘‘At the hearing on the motion to suppress, the state
called three police officers to testify about their actions
and observations during the search and seizure. The
[petitioner] called one witness, another police officer.
After the witnesses testified, the state argued that the
[petitioner] had failed to establish his subjective expec-
tation of privacy because all of his personal property
was in the city of Danbury, where he lived with his wife
and family, and the [petitioner] had failed by any other
conduct to demonstrate a subjective expectation of pri-
vacy in the property where the search occurred.
Defense counsel responded by arguing that the [peti-
tioner’s] ownership of the property alone was sufficient
to establish standing. He argued that the state was trying
to get around this fact by making a hyper-technical
argument on standing . . . .
‘‘The trial court agreed with the state and denied the
[petitioner’s] motion to suppress the evidence seized
from the search of the property and the [petitioner’s]
statements to the police. The trial court concluded that
the [petitioner] had failed to establish that he had a
subjective expectation of privacy in the property. The
court also found that the police possessed a reasonable
and articulable suspicion sufficient to justify stopping
the [petitioner’s] van after he entered and quickly exited
the driveway. Lastly, the trial court concluded that the
officers had probable cause to arrest the [petitioner].
The [petitioner] then entered a conditional plea of nolo
contendere.
‘‘The [petitioner] appealed to the Appellate Court
from the judgment of conviction, claiming that the trial
court’s denial of his motion to suppress was improper
because (1) he had a reasonable expectation of privacy
in the area searched, including the home and the area
surrounding it, (2) his fourth amendment rights were
violated by the warrantless search conducted by the
. . . task force, [and] (3) the police lacked a reasonable
and articulable suspicion to conduct a motor vehicle
stop of the van operated by the [petitioner], and his
resulting arrest was unsupported by probable cause
. . . . The Appellate Court rejected all of these
claims. . . .
‘‘Specifically, the Appellate Court concluded that the
[petitioner’s] first two claims failed because he lacked
a reasonable expectation of privacy. . . . The Appel-
late Court determined that the [petitioner] failed to
establish his subjective expectation of privacy because
he did not sufficiently develop his personal relationship
with the property at the suppression hearing. . . . The
[petitioner] argued that he was a cooccupant of the
property and cited three facts to support this con-
tention: (1) he leased the property to Phravixay for less
than his monthly mortgage payment; (2) he received
and stored items on the premises; and (3) he received
some mail at the property. . . .
‘‘The Appellate Court determined that the fact that
Phravixay’s rent was less than the [petitioner’s] mort-
gage established nothing about the manner in which he
retained rights to use the property, or if he retained
them at all. . . . Moreover, although the [petitioner]
claimed that he received and stored property on the
premises, he identified only a single item of his at the
property—an aeration system addressed to him at his
Danbury residence. . . . The court did not find that
the presence of a single piece of property established
that the [petitioner] was a cotenant. . . . Finally, the
Appellate Court concluded that the presence of some
mail . . . did not establish that the [petitioner] lived
at the property or otherwise was there frequently. . . .
‘‘The Appellate Court also concluded that the police
possessed a reasonable and articulable suspicion that
the [petitioner] had engaged in criminal conduct. . . .
The Appellate Court determined that, on the basis of
the totality of the circumstances, including the spatial
and temporal link between the Terry [v. Ohio, 392 U.S.
1, 21–22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] stop
and the investigation of the felony in progress (the
marijuana grow operation), as well as the [petitioner’s]
act of entering and quickly leaving the property, the
police were justified in stopping the [petitioner]. . . .
The Appellate Court also determined that the police
had probable cause to arrest the [petitioner] after they
observed lumber and irrigation piping in the van similar
to the materials being used to construct the greenhouse,
demonstrating a probable connection between the [peti-
tioner] and the marijuana operation at the property.
. . .
‘‘The [petitioner] appealed to [our Supreme Court]
from the judgment of the Appellate Court, and [our
Supreme Court] granted certification on the following
issues: (1) Did the Appellate Court properly determine
that the [petitioner] did not have standing (a reasonable
expectation of privacy) to challenge a search of residen-
tial premises that he owned but had leased at the time of
the search? . . . (2) If the answer to the first question
is in the negative, were all subsequent actions of the
police—the Terry stop of the vehicle, the warrantless
arrest, and the defendant’s confession—the fruits of one
or more preceding illegalities? . . . (3) If the answer to
the first question is in the affirmative, did the Appellate
Court properly determine that the Terry stop and war-
rantless arrest of the defendant were lawful, and that
the resulting confession was lawfully obtained? . . .
[Our Supreme Court answered] the first question in the
affirmative, [did not] reach the second question, and
[answered] the third question in the affirmative. [Our
Supreme Court thus affirmed] the judgment of the
Appellate Court.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) State v. Houghta-
ling, 326 Conn. 330, 333–39, 163 A.3d 563 (2017), cert.
denied, U.S. , 138 S. Ct. 1593, 200 L. Ed. 2d 776(2018). In concluding that this court properly deter-
mined that the petitioner did not have standing, our
Supreme Court held that the petitioner failed to estab-
lish a subjective expectation of privacy because he did
not present sufficient evidence detailing his connection
to the property or the marijuana grow operation that
took place on the property. See id., 352.
On October 24, 2017, the petitioner filed a petition for
a writ of habeas corpus alleging ineffective assistance
of trial counsel, Alan Sobol. On September 4, 2018, after
a trial that took place over the course of three days,
the habeas court denied the petition. The habeas court
concluded that the petitioner failed to prove that trial
counsel rendered deficient performance as alleged and
that, even if the court presumed deficient performance,
the petitioner failed to prove that he was prejudiced by
counsel’s deficient performance. Following the ruling
of the habeas court, the petitioner filed a petition for
certification to appeal, which was granted by the habeas
court. This appeal followed.
I
The petitioner claims that Sobol rendered deficient
performance when he litigated the petitioner’s motion
to suppress by (1) failing to inform the petitioner of
his right to testify, (2) limiting the evidence presented
regarding the petitioner’s standing to challenge the con-
stitutionality of the search, (3) utilizing a three-pronged
approach that was not a reasonable strategic basis for
his decisions, and (4) relying on Baker v. Carr, 369 U.S.
186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), in lieu of Katz
v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.
2d 576 (1967), in the petitioner’s memorandum in sup-
port of the motion to suppress. The petitioner also con-
tends that he was prejudiced by trial counsel’s alleged
deficient performance because, but for Sobol’s failure
to establish that the petitioner had standing to raise
a fourth amendment claim, the petitioner’s motion to
suppress would have been successful.
We begin our discussion by setting forth guiding prin-
ciples of law as well as our standard of review, which
are well settled. ‘‘A criminal defendant’s right to the
effective assistance of counsel extends through the first
appeal of right and is guaranteed by the sixth and four-
teenth amendments to the United States constitution
and by article first, § 8, of the Connecticut constitution.
. . . To succeed on a claim of ineffective assistance
of counsel, a habeas petitioner must satisfy the two-
pronged test articulated in [Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)]. Strickland requires that a petitioner satisfy
both a performance prong and a prejudice prong. To
satisfy the performance prong, a claimant must demon-
strate that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed . . . by
the [s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Because both prongs . . . must
be established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either
prong. . . .
‘‘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.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Jordan v. Commis-
sioner of Correction, 197 Conn. App. 822, 829–31, 234
A.3d 78, cert. granted, 335 Conn. 931, 236 A.3d 218(2020).
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. Prevailing norms of practice as reflected in
American Bar Association standards and the like . . .
are guides to determining what is reasonable. . . .
Nevertheless, [j]udicial scrutiny of counsel’s perfor-
mance must be highly deferential. It is all too tempting
for a [petitioner] to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable. . . . A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Citation omitted; internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 679, 51 A.3d 948 (2012).
‘‘The reasonableness of counsel’s actions may be
determined or substantially influenced by the [petition-
er’s] own statements or actions. Counsel’s actions are
usually based, quite properly, on informed strategic
choices made by the [petitioner] and on information
supplied by the [petitioner]. In particular, what investi-
gation decisions are reasonable depends critically on
such information. For example, when the facts that
support a certain potential line of defense are generally
known to counsel because of what the defendant has
said, the need for further investigation may be consider-
ably diminished or eliminated altogether. And when
a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investi-
gations may not later be challenged as unreasonable.’’
(Internal quotation marks omitted.) Id., 681.
‘‘[T]here are countless ways to provide effective assis-
tance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the
same way.’’ (Internal quotation marks omitted.) Mele-
trich v. Commissioner of Correction, 332 Conn. 615,
637, 212 A.3d 678 (2019). The United States Supreme
Court has cautioned that a reviewing court, in consider-
ing whether an attorney’s performance fell below a
constitutionally acceptable level of competence pursu-
ant to the standards set forth herein, must ‘‘properly
apply the strong presumption of competence that
Strickland mandates’’ and is ‘‘required not simply to
give [trial counsel] the benefit of the doubt . . . but
to affirmatively entertain the range of possible reasons
[that counsel] may have had for proceeding as they
did . . . .’’ (Citation omitted; internal quotation marks
omitted.) Cullen v. Pinholster, 563 U.S. 170, 196, 131
S. Ct. 1388, 179 L. Ed. 2d 557 (2011). This strong pre-
sumption of professional competence extends to coun-
sel’s investigative efforts; see Thompson v. Commis-
sioner of Correction, 131 Conn. App. 671, 698, 27 A.3d
86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011); as
well as to choices made by counsel regarding what
defense strategy to pursue. See Veal v. Warden, 28 Conn.
App. 425, 434, 611 A.2d 911, cert. denied, 224 Conn. 902,
615 A.2d 1046 (1992). With the foregoing legal principles
in mind, we turn to the petitioner’s arguments in support
of his claim of ineffective assistance of counsel.
A
The petitioner’s first contention is that Sobol ren-
dered deficient performance by failing to inform the
petitioner of his right to testify at the suppression hear-
ing. The respondent, the Commissioner of Correction,
argues, to the contrary, that Sobol discussed the issue of
testifying with the petitioner. The respondent contends
that Sobol advised the petitioner that the state might
respond to his potential testimony by calling Phravixay,
which was a result that the petitioner wanted to avoid
because he and his wife feared retribution from Phravi-
xay.
‘‘It is the responsibility of trial counsel to advise a
defendant of the defendant’s right to testify and to
ensure that the right is protected. . . . The decision
of whether to testify on one’s own behalf, however,
ultimately is to be made by the criminal defendant.’’
(Citation omitted; internal quotation marks omitted.)
Victor C. v. Commissioner of Correction, 179 Conn.
App. 706, 715, 180 A.3d 969 (2018). ‘‘A defendant is
entitled to decide whether to testify in his or her own
case and is further entitled to have advice from counsel
concerning that decision. . . . Counsel’s duty to advise
includes the duty to keep the defendant informed of all
developments in the case material to the defendant’s
decision to testify. . . . Deciding whether to testify on
one’s own behalf is often among the most difficult
choices a criminal defendant must make during trial.
Testifying can present a risky and difficult ordeal for
a defendant. Defense counsel therefore must keep the
defendant apprised of all material information known
to counsel in order to help the defendant in making that
decision.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Helmedach v. Commis-
sioner of Correction, 329 Conn. 726, 740, 189 A.3d
1173 (2018).
The record reveals the following relevant facts. At
the habeas trial, Sobol testified that he specifically dis-
cussed with the petitioner what could occur at the sup-
pression hearing if the petitioner chose to testify. Sobol
testified that he told the petitioner that the state likely
would call Phravixay to rebut the petitioner’s testimony
and also would try to implicate the petitioner along
with William Eichen, the petitioner’s brother-in-law, in
the marijuana grow operation. Later in the hearing,
Sobol stated that the petitioner told him that he did not
want to testify. Sobol also stated that he had informed
the petitioner that he agreed with the petitioner’s deci-
sion because he believed that it would be more harmful
than helpful to the petitioner. Sobol testified that he
based his decision on the scant information provided
to him by the petitioner, along with the petitioner’s
communication that he spent all of his time in Danbury.
At the habeas hearing on April 27, 2018, habeas coun-
sel and Sobol engaged in the following colloquy: ‘‘[The
Petitioner’s Habeas Counsel]: Did you advise [the peti-
tioner] that he could testify at the hearing on the motion
to suppress and that his testimony could not be used
against him by the state at any subsequent criminal trial
in their case-in-chief?
‘‘[The Witness]: No.
‘‘[The Petitioner’s Habeas Counsel]: Why?
‘‘[The Witness]: Because that conversation would
have been premature, that’s the right verbiage, because
he was quite explicit in instructing us not to call him
as a witness, that he did not want to testify for a multi-
tude of reasons, primarily, primarily of which was the
concern that were he to testify, it would in all likelihood
have brought Mr. Phravixay into the case as a rebuttal
witness, and he was concerned about his fears for him
and his family, and also Mr. Phravixay’s testimony
would have further implicated Mr. Eichen, his brother-
in-law, and so I never—I did not get into the hypotheti-
cal of you’re telling me you don’t want to testify, and
I’m also telling you that if you do testify, in my opinion,
as I testified the last time I was here, that in all likeli-
hood, Mr. Phravixay would testify, and he said I’m not
testifying. I don’t want to testify. Don’t call me. So I
did not get into the hypothetical question, well, you’re
instructing me not to call you. You don’t want to testify,
but by the way—not by the way—but on the other hand,
if you change your mind or down the road you decide
to testify, this, that or the other, I did not get into a
[Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967,
19 L. Ed. 2d 1247 (1968)] discussion, nor get into the
derivative use of his testimony because he was explicit
in saying, I don’t want to testify. Do not call me.
That’s why.’’2
In contrast to Sobol’s testimony, the petitioner testi-
fied that Sobol discussed the use of his testimony on
one occasion during which Sobol told him that he never
places his clients on the stand to testify. The petitioner’s
sister, Holly Eichen, also testified that Sobol stated to
her that he would never place his clients on the stand.
In its memorandum of decision, the habeas court
rejected the petitioner’s claim that he was advised not
to testify at the hearing on the motion to suppress,
finding that Sobol’s testimony on this issue was credi-
ble, whereas the testimony of the petitioner and his
sister was not. We will not disturb a habeas court’s
factual finding that turns on its evaluation of the credi-
bility of witnesses. See Flomo v. Commissioner of Cor-
rection, 169 Conn. App. 266, 279, 149 A.3d 185 (2016)
(‘‘[a] reviewing court ordinarily will afford deference
to those credibility determinations made by the habeas
court on the basis of [the] firsthand observation of
[a witness’] conduct, demeanor and attitude’’ (internal
quotation marks omitted)), cert. denied, 324 Conn. 906,
152 A.3d 544 (2017). Thus, upon review of the record,
we conclude that the petitioner has not met his burden
of showing that Sobol performed deficiently when
advising the petitioner regarding whether he should
testify at the suppression hearing.
B
The petitioner’s next contention is that Sobol’s strat-
egy to limit ‘‘standing evidence on the theory that the
judge might punish the petitioner for filing a motion to
suppress’’ was unreasonable. Citing to State v. Revelo,
256 Conn. 494, 775 A.2d 260, cert. denied, 534 U.S. 1052,
122 S. Ct. 639, 151 L. Ed. 2d 558 (2001), the petitioner
argues that the basis for Sobol’s strategic decision pre-
viously has been rejected by our Supreme Court, which
held that a court may not penalize an accused for exer-
cising a statutory or constitutional right by increasing
his or her sentence solely because of that election.
Specifically, the petitioner points to evidence that could
have been introduced via Phravixay to establish that
the petitioner had a sufficient expectation of privacy
on the property to give him standing to pursue the
motion to suppress.
The record reveals the following relevant facts. At
the habeas trial, Sobol testified that presenting evidence
to support the petitioner’s claim that he had standing
to raise a fourth amendment claim via Phravixay’s testi-
mony could have resulted in the judge not accepting a
conditional nolo contendere plea and may have nega-
tively impacted the petitioner at sentencing if the judge
were to credit Phravixay’s testimony. He testified that
if the petitioner did not prevail on every single issue
on the motion to suppress, he could not, ‘‘unring the
bell.’’ Sobol also testified that ‘‘I did everything I could
to preserve the five [years] after four [years served
sentence] when [the state’s attorney assigned to the
petitioner’s criminal case, Matthew Crockett] said if
you do the motion to suppress, it’s seven [years] after
six [years] I think.’’ Sobol further testified that the peti-
tioner communicated on multiple occasions that he did
not want Phravixay to testify.
Crockett testified at the habeas trial that, if the peti-
tioner had testified to the ownership of the contraband
and his involvement in the marijuana grow operation,
he may have called witnesses to rebut or to impeach
the petitioner. Crockett testified that he would not have
sought higher punishment for the petitioner if, in con-
nection with the motion to suppress, the petitioner had
taken responsibility for the ownership of the marijuana
and his involvement in the grow operation at the time
of the motion to suppress.
The habeas court, in its memorandum of decision,
concluded that the petitioner had failed to establish
that Sobol’s performance in failing to call Phravixay as
a witness fell below an objective standard of reason-
ableness or created a reasonable probability that the
outcome of the motion to suppress would have been
different.3
Our Supreme Court in State v. Revelo, supra, 256
Conn. 496, addressed the issue of whether the due pro-
cess rights of a defendant were violated when the trial
court (1) offered to sentence the defendant to eight
years imprisonment for the defendant’s plea of guilty
in connection with the defendant’s sale of narcotics,
(2) withdrew the offer upon learning that the defendant
wanted to exercise his right to a judicial determination
of his then pending motion to suppress, (3) informed
the defendant that he would receive a sentence of nine
years of imprisonment if he decided to plead guilty in
the event that his motion to suppress was denied, and
(4) imposed a nine year sentence following the defen-
dant’s conditional plea of nolo contendere, which the
defendant had entered as a result of the denial of his
motion to suppress.
In Revelo, the defendant contended that the trial court
improperly penalized him for exercising his right to a
judicial determination of his motion to suppress by
increasing the terms of the plea bargain from eight to
nine years solely because of his decision to exercise
that right. Id., 508. The court held that, ‘‘[a]lthough a
court may deny leniency to an accused who, like the
defendant, elects to exercise a statutory or constitu-
tional right, a court may not penalize an accused for
exercising such a right by increasing his or her sentence
solely because of that election.’’ Id., 513. The court
further held that, ‘‘[a]lthough the distinction between
refusing to show leniency to an accused who insists
on asserting a constitutional right and punishing an
accused for asserting that right may, at times, be a fine
one, there is no difficulty in discerning what occurred
in this case: the trial court imposed a more severe sen-
tence on the defendant solely because he asserted his
right to a judicial ruling on his motion to suppress.’’
Id., 513–14. The court went on to state: ‘‘Moreover,
it would not have been improper for the court, upon
learning of the defendant’s decision to reject that offer,
to inform the defendant of the potential for a greater
sentence in the event his motion was denied. In such
circumstances, however, it also would be incumbent
upon the court to explain why a greater sentence might
be appropriate . . . to dispel any suggestion that the
court was prepared to punish the defendant merely for
exercising his right to a judicial determination of his
motion. Indeed, the failure of the trial court in this case
to provide such an explanation is a critical factor in our
conclusion that the court overstepped its constitutional
bounds by adding one year to the defendant’s sentence.’’
(Citation omitted.) Id., 516.
In a footnote, however, the court noted that ‘‘the
prosecutor would not have been barred from threaten-
ing to recommend a greater sentence in the event the
defendant refused to plead guilty prior to obtaining
a ruling on his motion to suppress. Moreover, if the
prosecutor had taken that position, we see no reason
why the court would have been prohibited from
informing the defendant of the possibility of a greater
sentence if he pressed and lost his motion to suppress
because, in that event, the prosecutor’s hand would be
strengthened considerably, and, in addition, the defen-
dant arguably would be entitled to less consideration
for his plea than if he had chosen to accept responsibil-
ity for the offense at an earlier stage of the proceedings.’’
(Emphasis in original.) Id., 515 n.28.
In the present case, the petitioner’s reliance on Revelo
is misplaced. The petitioner misunderstands Sobol’s
concerns about calling Phravixay to establish the peti-
tioner’s involvement with the marijuana grow opera-
tion. Although such evidence may have been of assis-
tance in establishing the petitioner’s standing to pursue
the motion to suppress, it also could have had the effect
of further implicating the petitioner in the crime. This
is the bell that Sobol noted could not be unrung. Cer-
tainly, the state and the court could have taken into
account the petitioner’s culpability in the grow opera-
tion in fashioning any plea offer. It was reasonable for
Sobol to be concerned about the eventual outcome of
the case as he decided how to balance proving the
petitioner’s standing to raise the motion to suppress
while, at the same time, limiting the evidence that
proved the petitioner’s active involvement in the grow
operation. In addition, Sobol testified repeatedly, and
the habeas court found such testimony credible, that
the petitioner was insistent that Phravixay not be called
as a witness at the suppression hearing. Under these
circumstances, the habeas court properly concluded
that the petitioner did not establish that Sobol’s perfor-
mance, in deciding not to present the testimony of
Phravixay, fell below an objective standard of reason-
ableness.
C
The petitioner also argues more generally that Sobol’s
asserted justifications for his approach to the suppres-
sion hearing were not reasonable. Specifically, the peti-
tioner argues that minimizing the petitioner’s involve-
ment in the property was antithetical to the motion
to suppress, Sobol did not have any reason to fear
antagonizing Phravixay, and his concern about poten-
tially implicating Eichen in the crime was unreason-
able.
The following additional facts are relevant to the
petitioner’s arguments. At the habeas trial, Sobol testi-
fied that his theory of defense was based on a three-
pronged approach. The first prong addressed the facts
of the case that suggested the petitioner’s presence on
the property and involvement with the grow operation
was thin. The second prong sought to avoid the involve-
ment of Phravixay in the case. The third prong sought
to avoid the potential criminal implication of Eichen in
the case. Sobol testified that the petitioner told him
that he was on the property only occasionally, that
Phravixay posed significant safety concerns for the peti-
tioner and his wife, and that he desired to avoid impli-
cating Eichen, his brother-in-law, in the case. Sobol also
testified that the ultimate strategy was to approach the
motion to suppress via direct examination or cross-
examination of witnesses whose testimony would not
trigger the involvement of Phravixay and Eichen.
We first address the petitioner’s contention that min-
imizing his involvement in the property was not a rea-
sonable strategy as it was antithetical to establishing
the petitioner’s standing to pursue the motion to sup-
press. Our review of the record does not support the
petitioner’s contention. During the habeas trial, Sobol
testified that his conclusion that the petitioner had lim-
ited involvement with the property was based on what
the petitioner told him. Sobol stated that it was undis-
puted that the petitioner was the owner of the property
and, in essence, had yielded dominion and control of
the property to Phravixay. In particular, Sobol testified
that the petitioner communicated that he did not sleep
or live at the property, he rarely was at the property
because of his business in Danbury and New Milford,
he rented the property to Phravixay, who compensated
the petitioner with cocaine and marijuana, and he was
not engaged in a joint venture of growing marijuana on
a large scale on the property. Additionally, the habeas
court concluded that the record contained no persua-
sive evidence that the petitioner resided at the property,
and that Sobol strove to prevail on the standing issue
in spite of the information the petitioner gave him.
The record demonstrates that Sobol’s decision to
minimize the petitioner’s involvement in the property
was reasonably based on the evidence available to
Sobol at the time of the motion to suppress, which
included the petitioner’s own statements that he had
little to do with the property. Thus, Sobol had to pursue
a strategy that was consistent with the petitioner’s lim-
ited involvement with the property because that was
the information the petitioner gave to Sobol. Although
that information may have made it more difficult for
the petitioner to establish standing to pursue the motion
to suppress, any such difficulty is attributable to the
petitioner and not to Sobol. See Gaines v. Commis-
sioner of Correction, supra, 306 Conn. 681 (counsel
entitled to rely on information provided to him by peti-
tioner).
Next, the petitioner contends that Sobol’s decision
not to call Phravixay as a witness at the suppression
hearing, on the basis that the petitioner feared Phravi-
xay, was not a reasonable strategic decision. The
respondent contends that Sobol testified that the peti-
tioner was clear about his desire to not have Phravixay
testify. The respondent also contends that Phravixay’s
testimony could have implicated the petitioner in the
marijuana grow operation and also could have impli-
cated the assets of the petitioner and his family. We
agree with the respondent.
At the habeas trial, Sobol testified that his decision
to avoid antagonizing Phravixay was based on the peti-
tioner telling him that Phravixay was a dangerous gang
member, who posed significant safety concerns for the
petitioner and his wife. Sobol also testified that he was
concerned that Phravixay would implicate the peti-
tioner in the marijuana grow operation and would, thus,
negatively affect the petitioner’s plea negotiations.
The petitioner testified that he lied to Sobol about
his belief concerning Phravixay’s criminal affiliations
and his concerns about the safety of himself and his
family. The petitioner also stated that he did not instruct
Sobol to avoid involving Phravixay in the matter. The
habeas court, however, did not credit the petitioner’s
testimony. By contrast, the court found Sobol to be
credible.
Considering all of the circumstances from Sobol’s
perspective at that time, the petitioner has not shown
that Sobol’s strategy to avoid triggering the involvement
of Phravixay was unreasonable. Sobol was concerned
that the trial court may have imposed a sentence that
was harsher than the terms of the plea bargain on the
basis of Phravixay’s potentially adverse testimony, and
the habeas court credited Sobol’s testimony that the
petitioner had instructed him not to call Phravixay to
testify. As noted previously in this opinion, counsel
properly may rely ‘‘on informed strategic choices made
by the [petitioner] and on information supplied by the
[petitioner].’’ Gaines v. Commissioner of Correction,
supra, 306 Conn. 681. Thus, we conclude that Sobol’s
decision to avoid involving Phravixay in the case did
not fall below an objective standard of reasonableness.
The petitioner’s third contention is that the perceived
threat that Eichen would be arrested was not a viable
consideration because Sobol’s duty of loyalty was to
the petitioner, and Sobol should have known the timing
and effect of a nolle prosequi, which Crockett had
entered as to the charges against Eichen. The respon-
dent contends that the habeas court found that Eichen
faced possible, ongoing exposure under federal drug
laws at the time of the suppression hearing. The respon-
dent also contends that Sobol testified that he was
instructed by the petitioner to not implicate Eichen.
In the present case, the petitioner has not met his
burden of proving that Sobol’s trial strategy in seeking
to avoid implicating Eichen constituted deficient perfor-
mance. As the habeas court noted, at the time of the
hearing on the motion to suppress, the federal statutes
of limitations relating to Eichen’s arrest had not
expired. Moreover, Sobol testified repeatedly about the
petitioner’s communicated desire to not implicate
Eichen in the case. The petitioner, here, has not over-
come the presumption that Sobol’s strategic decision
to avoid implicating Eichen was reasonable given the
petitioner’s firm conviction not to implicate his brother-
in-law.
In sum, we conclude that the petitioner failed to
establish that Sobol’s approach to the case, and in par-
ticular to the suppression hearing, was deficient given
the information available to him and the demands made
on him by the petitioner.
D
The petitioner also contends that trial counsel’s fail-
ure to cite to Katz v. United States, supra, 389 U.S.
347, in his memorandum in support of the petitioner’s
motion to suppress was objectively unreasonable and
constitutes deficient performance. The petitioner
argues that Sobol instead incorrectly relied on Baker
v. Carr, supra, 369 U.S. 186, to support the motion
to suppress. The petitioner argues that doing so was
improper because Baker concerned standing to contest
the constitutionality of a statute, whereas Katz specifi-
cally addressed standing to contest a search. In
response, the respondent contends that Sobol, in fact,
did cite to Katz for the proposition that warrantless
searches almost always are unreasonable. The respon-
dent further argues that Sobol relied on the standing
principles in Katz, even though he did not mention Katz
when doing so.
In its memorandum of decision, the habeas court
concluded that Baker v. Carr, supra, 369 U.S. 186, suffi-
ciently supported Sobol’s arguments and that the peti-
tioner failed to show how reliance on Katz v. United
States, supra, 389 U.S. 347, would have resulted in the
criminal trial court concluding that he had standing.
The habeas court also concluded that the fact that Sobol
relied on Baker, instead of Katz, is not much of a basis
for a claim of deficient performance, when Sobol’s strat-
egy was informed by the facts of the case and the
information given to him by the petitioner.
We agree with the habeas court that Sobol’s briefing
of the standing issue was not deficient. The following
additional facts from the record are pertinent to the
resolution of the petitioner’s argument. In the petition-
er’s memorandum in support of his motion to suppress
the evidence before the trial court, the petitioner argued
that the warrantless search of his property violated the
fourth amendment to the United States constitution and
article first, §§ 7 and 9, of the Connecticut constitution.
Specifically, the petitioner argued that the warrantless
search of his property violated his constitutional rights
because it did not fall under any exceptions to the
warrant requirement, and the exclusionary rule man-
dates the suppression of evidence that was illegally
obtained. The petitioner contended that (1) the area
searched constituted a curtilage, as opposed to an open
field where an individual may not legitimately expect
privacy for activities conducted in the open field, (2)
warrantless searches of property that are conducted
subsequent to a warrantless aerial surveillance are not
necessarily reasonable, (3) the plain view doctrine does
not apply to warrantless searches, (4) no exigent cir-
cumstances were present, (5) the initial stop of the
petitioner’s vehicle was an invalid Terry stop, (6) even
if law enforcement conducted a valid stop of the peti-
tioner’s vehicle, their conduct exceeded the scope of a
proper stop, (7) any consent to search the premises
was the result of law enforcement’s illegal police con-
duct, and (8) the petitioner had standing to challenge
the statements and the consent to search given by
Phravixay.
In contending that he had standing to challenge the
consent to search provided by Phravixay, the petitioner,
in his memorandum in support of his motion to sup-
press, cited to Baker, in support of his argument that
he had a personal stake in the ruling on the motion to
suppress due to his interest in avoiding conviction. See
Baker v. Carr, supra, 369 U.S. 204. The petitioner also
cited to State v. Mitchell, 56 Conn. App. 561, 565, 744
A.2d 927, cert. denied, 253 Conn. 910, 754 A.2d 162(2000), for this court’s reliance on the holding in United
States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L.
Ed. 2d 619 (1980), namely, that a defendant must first
establish a reasonable expectation of privacy in the
premises before he may assert that his fourth amend-
ment rights have been violated by improper intrusion
into those premises.
The memorandum also addressed specifically why
the petitioner had a legitimate expectation of privacy
in the property. In particular, Sobol relied on the princi-
ples set forth in Katz v. United States, supra, 389 U.S.
347, in contending that the area searched constitutes a
curtilage and that the petitioner had an expectation of
privacy in that area. See State v. Davis, 283 Conn. 280,
324, 929 A.2d 278 (2007) (‘‘the [reasonable expectation
of privacy] test offers no exact template that can be
mechanically imposed upon a set of facts to determine
whether . . . standing is warranted’’ (internal quota-
tion marks omitted)). In Katz, the Supreme Court set
forth the following test to establish standing: ‘‘(1)
whether the [person contesting the search] manifested
a subjective expectation of privacy with respect to [the
invaded premises or seized property]; and (2) whether
that expectation [is] one that society would consider
reasonable. . . . This determination is made on a case-
by-case basis. . . . The burden of proving the exis-
tence of a reasonable expectation of privacy rests [with]
the defendant.’’ (Internal quotation marks omitted.)
State v. Jacques, 332 Conn. 271, 279, 210 A.3d 533 (2019).
Consistent with this test, Sobol argued that the area
searched constituted a curtilage because it was located
immediately behind the residence and was enclosed by
a fence, the area was enclosed by dense trees and
foliage, the area lent itself to use for intimate activities
such as swimming and gardening, and the area was
fully protected from public view. Sobol also argued
that the petitioner had an expectation of privacy with
respect to the area, despite having Phravixay on the
property as a tenant, because the petitioner owned and
had a possessory interest in the property that he had
not relinquished.
Moreover, the record shows that Sobol testified that
his options for addressing the standing issue were lim-
ited by the lack of credible evidence of the petitioner’s
presence on the property. In line with his testimony,
and the information the petitioner had provided to him,
Sobol, in the memorandum in support of the petitioner’s
motion to suppress, needed to find an alternative to
relying on specific evidence of the petitioner’s use of
the property to show the existence of a reasonable
expectation of privacy in the area searched. Conse-
quently, he argued that the petitioner had a legitimate
expectation of privacy in the area searched because
the property was a curtilage and because the petitioner
owned and had a possessory interest in the property.
See id., 287 (‘‘We recognize that property law concepts
do not necessarily control our fourth amendment
inquiry. They are, however, clearly a factor to be consid-
ered.’’ (Internal quotation marks omitted.)).
In the present case, the habeas court concluded, and
the record supports, that Sobol’s strategy was informed
by the facts of the case and the information given to
him by the petitioner. ‘‘Indeed, we recognize that [t]here
are countless ways to provide effective assistance in
any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.
. . . [A] reviewing court is required not simply to give
[the trial attorney] the benefit of the doubt . . . but to
affirmatively entertain the range of possible reasons
. . . counsel may have had for proceeding as [they] did
. . . .’’ (Internal quotation marks omitted.) Robert S. v.
Commissioner of Correction, 194 Conn. App. 382, 393,
221 A.3d 493 (2019), cert. denied, 334 Conn. 913, 221
A.3d 446 (2020). Therefore, in considering the record,
we agree with the habeas court that Sobol’s failure to
discuss Katz v. United States, supra, 389 U.S. 347, in
detail, in support of the petitioner’s motion to suppress,
did not constitute deficient performance.
For the reasons set forth herein, we conclude that
the habeas court properly concluded that the petitioner
failed to prove that Sobol rendered deficient perfor-
mance in litigating the petitioner’s motion to suppress.4
II
Next, the petitioner claims that the habeas court
deprived him of his state and federal constitutional
rights to due process of law5 and committed plain error
when, without notice or opportunity to be heard, the
habeas court changed a full exhibit admitted at the
habeas trial without limitation to one admitted only for
a limited purpose. We disagree.
The following additional facts are necessary to the
resolution of this claim. At the February 26, 2018 habeas
trial, petitioner’s exhibit 13 was marked as a full exhibit
without objection. The exhibit consists of a fax cover
sheet, attached to which is a document entitled ‘‘Second
Draft of Proffer by Thomas Phravixay for Discussion
Purposes Only.’’ The document, drafted by Phravixay’s
attorney before the petitioner pleaded guilty, set forth
a proposed statement that Phravixay might be willing
to make regarding, inter alia, the petitioner’s involve-
ment in the marijuana grow operation. At the habeas
trial, Sobol testified that exhibit 13 was given to him
upon request from Attorney Christian Sarantopoulos,
who had been the petitioner’s previous criminal trial
attorney. Sobol testified that the draft proffer stated
the opposite of what the petitioner had communicated
to counsel with regard to his presence on the property,
his role in the marijuana grow operation, and his fear of
Phravixay.6 Sobol further testified that the draft proffer
was unsigned, and he was unable to testify as to whether
the draft proffer was sworn to under oath.
At the trial before the habeas court, Attorney Brian
Woolf, who represented Phravixay in relation to the
criminal charges arising out of his arrest at the property,
testified that he had drafted the proffer to provide infor-
mation to the assistant state’s attorney, Crockett, in
anticipation that, if the draft proffer was accepted,
Phravixay might testify at a trial of the petitioner.
Asserting the attorney-client privilege, Woolf declined
to testify as to whether the draft proffer was a rendition
of the information that Phravixay had provided to him.
Habeas counsel, asserting that Phravixay’s attorney-
client privilege had been waived, requested that the
habeas court order Woolf to answer whether the draft
proffer was a rendition of the information that Phravi-
xay had provided to him. Habeas counsel sought to
utilize Woolf’s testimony, among additional purposes,
to show the effect of the draft proffer’s statements on
the listener, in particular, Sobol. The habeas court sus-
tained the objection to habeas counsel’s inquiry, stating:
‘‘You’re lucky you got this in as a full exhibit. Objection
sustained. Move on.’’ Woolf later testified that he did
not independently verify anything with respect to the
draft proffer, but that it was his general practice to
verify the information of a proffer prior to finalizing
the document.
The habeas court made several remarks as to the
weight of the draft proffer. The habeas court noted that
the draft proffer was not signed, stamped or sworn to.
The habeas court also stated that ‘‘[exhibit 13] may be
a full exhibit, but it’s the emptiest full exhibit I think
I’ve ever seen.’’ In response to habeas counsel’s inquiry
to Sobol about the information contained in the proffer,
the habeas court stated: ‘‘Have I made myself unclear?
To paraphrase the late John Nance Garner, it’s not
worth a warm bucket of spit. It has no provenance.’’
In its memorandum of decision, the habeas court
stated the following regarding the draft proffer: ‘‘Attor-
ney Brian Woolf testified on April 27, 2018, that he had
represented Mr. Phravixay in the drug case. He prepared
a proffer for the purposes of negotiations with the
state’s attorney. Petitioner’s exhibit 13. The proffer was
unsigned and unsworn. It was not in Mr. Phravixay’s
own words and the contents were not verified by Woolf.
This proffer, premarked by both parties, was only
allowed to remain in this trial as an exhibit to show its
effect upon Sobol, not for the truth of its contents. If
Mr. Phravixay had waived his fifth amendment rights
and if he had testified according to the proffer’s con-
tents, then it would have been helpful to the petitioner’s
claim of standing. Those are two big ‘ifs.’ Sobol testified
that in the proffer Phravixay did not claim that the
petitioner had exclusive control of the property.
Although his federal fifth amendment rights had
expired, Phravixay was not produced at the habeas trial
and the petitioner has failed completely to prove what
he would have said at the motion to suppress [hearing].
Here, if anything, petitioner’s exhibit 13 may explain
why the petitioner was so anxious to keep Mr. Phravi-
xay off the stand at the motion to suppress hearing since
the proffer describes an extensive marijuana cultivation
business ongoing since 2003 involving the petitioner’s
legitimate business location, his sister’s house, and even
his mother’s property in New Milford. And one never
knows what an incarcerated coconspirator will choose
to say about his free coconspirator after that person
had asked him to take ‘the weight.’ ’’
The petitioner, here, argues that exhibit 13 was admit-
ted as a full exhibit without any objection, the petitioner
was not given proper notice or opportunity to object
prior to the habeas court’s characterization of the
exhibit in its memorandum of decision as a limited
purpose exhibit, the habeas court’s characterization of
the exhibit as a limited purpose exhibit was a violation
of due process, and it constitutes plain error.
A review of the record reflects that the habeas court
erroneously stated in its memorandum of decision that
exhibit 13 was admitted for the limited purpose of show-
ing its effect upon Sobol. At the February 26, 2018
hearing before the habeas court, exhibit 13 was marked
as a full exhibit without objection and, therefore, exhibit
13 was evidence in the case for all purposes. See Hoff-
kins v. Hart-D’Amato, 187 Conn. App. 227, 237, 201
A.3d 1053 (2019) (‘‘[w]hen [a]n exhibit [is] offered and
received as a full exhibit [it] is in the case for all pur-
poses . . . and is usable as proof to the extent of the
rational persuasive power it may have’’ (internal quota-
tion marks omitted)). Nevertheless, it is the function
of the habeas court, as the trier of fact, ‘‘to consider,
sift, and weigh all the evidence . . . .’’ (Internal quota-
tion marks omitted.) State v. Campbell, 169 Conn. App.
156, 165, 149 A.3d 1007, cert. denied, 324 Conn. 902,
151 A.3d 1288 (2016).
‘‘Whether a party was deprived of his due process
rights is a question of law to which appellate courts
grant plenary review. . . . The core interests protected
by procedural due process concern the opportunity to
be heard at a meaningful time and in a meaningful
manner.’’ (Citation omitted.) McFarline v. Mickens, 177
Conn. App. 83, 100, 173 A.3d 417 (2017), cert. denied,
327 Conn. 997, 176 A.3d 557 (2018).
‘‘Fundamental tenets of due process require that all
persons directly concerned in the result of an adjudica-
tion be given reasonable notice and opportunity to pres-
ent their claims or defenses. . . . It is the settled rule
of this jurisdiction, if indeed it may not be safely called
an established principle of general jurisprudence, that
no court will proceed to the adjudication of a matter
involving conflicting rights and interests, until all per-
sons directly concerned in the event have been actually
or constructively notified of the pendency of the pro-
ceeding, and given reasonable opportunity to appear
and be heard. . . . It is fundamental in proper judicial
administration that no matter shall be decided unless
the parties have fair notice that it will be presented in
sufficient time to prepare themselves upon the issue.’’
(Citations omitted; internal quotation marks omitted.)
Urich v. Fish, 58 Conn. App. 176, 181, 753 A.2d 372(2000).
The petitioner argues that his right to due process
was violated by the court’s having limited, sua sponte,
the use of exhibit 13 because it may have affected the
petitioner’s decision to not present additional evidence
due to exhibit 13 being admitted as a full exhibit. The
petitioner also contends that exhibit 13 was sufficient
to establish that he had standing to challenge the search.
We are not persuaded.
The petitioner’s argument elevates form over sub-
stance. Having reviewed the record in this case, we
conclude that it is clear that the habeas court gave the
petitioner reasonable notice that, in its view, exhibit 13
lacked any probative value, and that it considered the
weight of the exhibit as not being worth ‘‘a warm bucket
of spit.’’ Thus, the petitioner was on notice that he
should not rely on exhibit 13 to prove any fact important
to his case. In fact, we find it significant that the court’s
comments about exhibit 13 having little or no eviden-
tiary value took place during the first day of the habeas
trial, February 26, 2018. The second and third days of
the trial did not take place until April 27, 2018, and May
8, 2018. Consequently, the petitioner had more than two
months to gather and present additional evidence after
the court informed him that exhibit 13 ‘‘has no prove-
nance.’’ Thus, his claim on appeal that, had he known
that the court was going to treat exhibit 13 as admitted
for a limited purpose, he would have submitted addi-
tional evidence simply is not persuasive.
In addition, because the habeas court, as the trier of
fact in this instance, is responsible for assessing the
credibility and weight of the evidence; see State v.
Campbell, supra, 169 Conn. App. 165; we conclude that
the petitioner is unable to demonstrate that the habeas
court’s action deprived the petitioner of due process
essentially by disagreeing with the petitioner as to
exhibit 13’s evidentiary value. The record reflects that
the habeas court, in its memorandum of decision, made
clear that it did not share the petitioner’s view that
exhibit 13 established the petitioner’s standing to chal-
lenge the search of the property. The court, in its memo-
randum of decision, fully explained the many reasons
that it found exhibit 13 to have little or no weight. The
court’s reasoning in this regard should have come as
no surprise to the petitioner because it was consistent
with the comments the court made about exhibit 13
during the trial. Therefore, we conclude that the habeas
court did not violate the petitioner’s due process rights
by stating in its memorandum of decision that exhibit
13 was a limited purpose exhibit.
The petitioner also claims that the habeas court’s
characterization of exhibit 13 as a limited purpose
exhibit constitutes plain error. ‘‘[T]he plain error doc-
trine . . . has been codified at Practice Book § 60-5,
which provides in relevant part that [t]he court may
reverse or modify the decision of the trial court if it
determines . . . that the decision is . . . erroneous in
law. . . . The plain error doctrine is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . The plain error doctrine is
reserved for truly extraordinary situations where the
existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the
judicial proceedings. . . . A party cannot prevail under
plain error unless it has demonstrated that the failure to
grant relief will result in manifest injustice.’’ (Footnote
omitted; internal quotation marks omitted.) Ajadi v.
Commissioner of Correction, 280 Conn. 514, 526, 911
A.2d 712 (2006).
We decline to invoke the plain error doctrine because
we conclude that the habeas court’s limited use of an
exhibit that it found to be of little value, which was
within its discretion as the trier of fact, did not affect
the fairness or integrity of the proceedings, nor did it
result in manifest injustice to the petitioner.
III
Finally, the petitioner claims that the habeas court
erred when it sustained an objection to the admission
of exhibit 7 for identification (exhibit 7) on hearsay
grounds. The petitioner argues that the purpose of
exhibit 7, which is a letter from the IRS to the petitioner
that was addressed to the property searched by law
enforcement, was to demonstrate that the petitioner
believed that he was receiving sensitive financial docu-
ments at the property in a manner consistent with dem-
onstrating that the petitioner had a reasonable expecta-
tion of privacy. The petitioner argues that the habeas
court’s ruling was premised on an incorrect interpreta-
tion of the Connecticut Code of Evidence because the
exhibit was offered to show that the petitioner exhibited
a subjective expectation of privacy that society also
recognizes as reasonable. The respondent argues that
exhibit 7 is an out-of-court statement offered for the
truth of the matter asserted because its significance lay
in the truth of its contents and that the court properly
exercised its discretion in not admitting it into evidence.
In the alternative, the respondent argues that any error
in excluding the exhibit was harmless. We agree with
the petitioner that the habeas court erroneously
excluded exhibit 7; however, we conclude that the error
was harmless.
Before turning to the specific evidentiary claim raised
by the petitioner, we first set forth our standard of
review and other applicable law. ‘‘The trial court’s ruling
on evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
We will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did. . . . To the extent [that] a trial court’s admission
of evidence is based on an interpretation of the Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Citation omitted; internal quotation marks
omitted.) Milford Bank v. Phoenix Contracting Group,
Inc., 143 Conn. App. 519, 532–33, 72 A.3d 55 (2013).
Because the petitioner claims that the trial court’s deci-
sion to exclude the evidence was based on an incorrect
interpretation of the Connecticut Code of Evidence, our
standard of review is plenary.
‘‘An out-of-court statement offered to establish the
truth of the matter asserted is hearsay. . . . As a gen-
eral rule, such hearsay statements are inadmissible
unless they fall within a recognized exception to the
hearsay rule.’’ (Internal quotation marks omitted.)
David P. v. Commissioner of Correction, 167 Conn.
App. 455, 478, 143 A.3d 1158, cert. denied, 323 Conn.
921, 150 A.3d 1150 (2016).
‘‘The hearsay rule forbids evidence of out-of-court
assertions to prove the facts asserted in them. If the
statement is not an assertion or is not offered to prove
the facts asserted, it is not hearsay. . . . This exclusion
from hearsay includes utterances admitted to show
their effect on the hearer.’’ (Citation omitted; internal
quotation marks omitted.) State v. Hull, 210 Conn. 481,
498–99, 556 A.2d 154 (1989). ‘‘Because, however, the
effect on the hearer rationale may be misapplied to
admit facts that are not relevant to the issues at trial
. . . courts have an obligation to ensure that a party’s
purported non-hearsay purpose is indeed a legitimate
one. . . . Evidence is only admissible when it tends to
establish a fact in issue or to corroborate other direct
evidence in the case. . . . Accordingly, an out-of-court
statement is admissible to prove the effect on the hearer
only when it is relevant for the specific, permissible
purpose for which it is offered.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Miguel C., 305 Conn. 562, 574, 46 A.3d 126(2012). ‘‘The proffering party bears the burden of estab-
lishing the relevance of the offered testimony. Unless
such a proper foundation is established, the evidence
. . . is irrelevant.’’ (Internal quotation marks omitted.)
State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).
During the habeas trial, the petitioner offered exhibit
7 to show the type of mail that he had been receiving
at the property. The petitioner argued to the court that
he was not offering exhibit 7 for the truth of the matters
contained in the letter from the IRS. The respondent
objected on hearsay grounds. The court did not rule on
the respondent’s objection. The petitioner then offered
exhibit 7 for a second time. On this occasion, the respon-
dent objected on the grounds of hearsay and authentic-
ity. The court sustained the hearsay objection and also
ruled that exhibit 7 did not fall under the business
records exception to the hearsay rule.
The record is clear that the petitioner offered exhibit
7 to demonstrate the type of mail that he received at
the property, regardless of the truth of the matter
asserted in the letter. The petitioner was not offering
the exhibit to prove the facts asserted within the letter
and, thus, the exhibit did not constitute hearsay.
Accordingly, we conclude that the habeas court errone-
ously excluded exhibit 7 on hearsay grounds.7
Having concluded that the habeas court improperly
excluded exhibit 7 on hearsay grounds, we turn to the
question of whether the habeas court’s decision consti-
tuted harmful error. ‘‘Even when a trial court’s eviden-
tiary ruling is deemed to be improper, we must deter-
mine whether that ruling was so harmful as to require
a new trial. . . . In other words, an evidentiary ruling
will result in a new trial only if the ruling was both wrong
and harmful.’’ (Internal quotation marks omitted.) State
v. Kelsey, 93 Conn. App. 408, 415, 889 A.2d 855, cert.
denied, 277 Conn. 928, 895 A.2d 800 (2006). ‘‘Under the
current and long-standing state of the law in Connecti-
cut, the burden to prove the harmfulness of [a noncon-
stitutional] improper evidentiary ruling is borne by the
[petitioner]. The [petitioner] must show that it is more
probable than not that the erroneous action of the court
affected the result.’’ (Internal quotation marks omitted.)
State v. DeJesus, 260 Conn. 466, 485, 797 A.2d 1101(2002).
The petitioner, here, argued in his principal brief only
that the habeas court’s evidentiary ruling warrants
reversal because the exclusion of exhibit 7 deprived
the petitioner of the ability to demonstrate that he was
receiving mail on a subject for which most people wish
to exercise their right to privacy, which was the petition-
er’s inability to pay his taxes and his potential insol-
vency. In particular, the petitioner argued in that brief
that exhibit 7 would have shown the character of the
mail he received at the property in a compelling way
that demonstrated his expectation of privacy at the
property and, hence, his standing to pursue the motion
to suppress. The petitioner made a much different argu-
ment regarding harm in his reply brief. In that brief, he
argued for the first time that the ‘‘exclusion of [exhibit
7] impaired the petitioner’s ability to prove that his trial
attorney provided deficient representation and that the
petitioner was harmed by it. . . . Exhibit 7 . . . was
pertinent to the arguments that trial counsel did not
properly research, investigate and prepare for the sup-
pression [hearing].’’
The respondent, in contrast, argues that the petitioner
was not harmed by the habeas court’s exclusion of
exhibit 7 for the following three reasons. First, the
respondent contends that the letter was cumulative of
both the petitioner’s testimony as to the volume and
type of mail he received and of other exhibits admitted
at the habeas trial. Second, the respondent argues that
the petitioner testified without objection at the habeas
trial that exhibit 7 was a letter he received at the prop-
erty from the IRS concerning back taxes. Third, the
respondent argues that it is unlikely that exhibit 7, if
admitted, would have convinced the habeas court that
Sobol had rendered ineffective assistance in litigating
the motion to suppress. We are not persuaded by either
of the petitioner’s arguments.
With respect to his argument in his principal brief, the
petitioner’s harm analysis is misguided. The question
is not, as the petitioner posits, whether the admission
of exhibit 7 at the suppression hearing would have
established his standing to pursue the motion to sup-
press. The proper question is whether the habeas
court’s error in sustaining the objection to the admis-
sion of exhibit 7 likely affected the outcome of the
habeas trial. Put another way, had exhibit 7 been admit-
ted into evidence at the habeas trial would it likely
have affected the court’s conclusion as to either the
Strickland deficient performance or prejudice prong?
The petitioner’s principal brief engages in no such analy-
sis. Consequently, the petitioner, in his principal brief
failed to identify any cognizable harm arising from the
habeas court’s erroneous evidentiary ruling.
The petitioner attempted to remedy this deficiency
in his reply brief by arguing that the exclusion of exhibit
7 was harmful because it impaired his ability to prove
that Sobol performed deficiently. As noted previously
in this opinion though, the petitioner’s principal brief in
no way argued that Sobol’s performance was deficient
because he failed to conduct a sufficient investigation
as to the type of mail the petitioner received at the
property. See footnote 4 of this opinion. It is ‘‘a well
established principle that arguments cannot be raised
for the first time in a reply brief. . . . [I]t is improper
to raise a new argument in a reply brief, because doing
so deprives the opposing party of the opportunity to
respond in writing. . . . Specifically with regard to evi-
dentiary rulings, this court, on multiple occasions, has
declined to review claims where the appellant fails to
analyze harmful error in his or her principal brief.’’
(Citations omitted; internal quotation marks omitted.)
State v. Myers, 178 Conn. App. 102, 106–107, 174 A.3d
197 (2017). Consequently, although we have considered
the harm argument made by the petitioner in his princi-
pal brief, we decline to consider the new and different
harm argument raised for the first time in his reply
brief.8
Thus, in light of the record, and the single harm argu-
ment presented by the petitioner in his principal brief,
we conclude that the petitioner has failed to meet his
burden to prove that the exclusion of exhibit 7 harmed
him in a way that makes it more probable than not
that the decision of the habeas court would have been
different.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For convenience, we have reordered the petitioner’s claims from how
they are set forth in his principal brief.
2
The United States Supreme Court in Simmons v. United States, supra,
390 U.S. 394, held that ‘‘when a defendant testifies in support of a motion
to suppress evidence on [f]ourth [a]mendment grounds, his testimony may
not thereafter be admitted against him at trial on the issue of guilt unless
he makes no objection.’’
3
The court also concluded that the petitioner failed to present evidence
as to what Phravixay would have testified to had he been called to testify
at the suppression hearing. The petitioner argues that there was such evi-
dence in the form of exhibit 13, a draft proffer prepared by Phravixay’s
attorney, which had been admitted as a full exhibit at the habeas trial. For
a number of reasons, the court chose not to give any weight to that exhibit.
See part II of this opinion. Consequently, on the basis of our review of the
court’s decision in its entirety, the court’s conclusion that the petitioner
had failed to present any persuasive evidence with respect to the potential
testimony of Phravixay is not in error.
4
In his principal brief, the petitioner argues that he was prejudiced by
Sobol’s deficient performance because there was evidence in the form of
mail delivered to the petitioner at the property and an agreement he entered
into when purchasing the property for the purchase of the furnishings located
at the property, that would have established that the petitioner had a reason-
able expectation of privacy at the property. None of the documents to which
the petitioner refers was offered at the suppression hearing, although they
were admitted into evidence at the habeas trial. Nevertheless, the petitioner
made no argument in his principal brief that Sobol performed deficiently
by not offering this mail or the furnishings agreement into evidence at the
suppression hearing. In his reply brief, the petitioner for the first time
argues that Sobol performed deficiently by failing to conduct an adequate
investigation, including asking the petitioner about ‘‘the volume and charac-
ter of mail he received’’ at the property.
At oral argument before this court, the petitioner’s appellate counsel
argued that the petitioner, in the appeal, properly raised a claim of failure
to investigate. The petitioner’s appellate counsel cited to the petitioner’s
petition for a writ of habeas corpus and also argued that the principal brief
raises the claim, despite not directly identifying the claim as one involving
a failure to investigate. We disagree. ‘‘We repeatedly have stated that [w]e
are not required to review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal . . . the parties must
clearly and fully set forth their arguments in their briefs. . . . The parties
may not merely cite a legal principle without analyzing the relationship
between the facts of the case and the law cited.’’ (Citation omitted; internal
quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868(2016); see also Electrical Contractors, Inc. v. Dept. of Education, 303 Conn.
402, 444 n.40, 35 A.3d 188 (2012) (‘‘[c]laims are also inadequately briefed
when they are raised for the first time in a reply brief . . . or consist of
conclusory assertions . . . with no mention of relevant authority and mini-
mal or no citations from the record’’ (citation omitted; internal quotation
marks omitted)). Accordingly, this court will not review the claims that the
petitioner raises for the first time in his reply brief and that were not
presented properly to this court in his principal brief.
5
‘‘The defendant has not specifically identified his claim as falling under
either the federal or state constitution. Because he does not claim that the
state constitution provides greater protection in this regard than does the
federal constitution, and because he has not presented a separate and ade-
quate analysis under the state constitution . . . we regard his claim as being
presented under the federal due process clause as applied to the state
through the due process clause of the fourteenth amendment.’’ (Citation
omitted.) State v. Rizzo, 266 Conn. 171, 243 n.40, 833 A.2d 363 (2003).
6
During closing arguments at the habeas trial, the petitioner’s counsel
argued that the information in the proffer showed that the petitioner had
more significant ties to the property than what Sobol presented during the
suppression hearing. Thus, the petitioner argued, the proffer supported the
petitioner’s claim that Sobol performed deficiently by not calling Phravixay
to testify at the suppression hearing.
7
Because we conclude that the letter from the IRS constituted nonhearsay,
we need not decide whether the habeas court erroneously ruled that the
letter does not fall under the business records exception.
8
We also note that the petitioner in his reply brief did little to address
the respondent’s arguments as to why the court’s error was harmless. We
agree with the respondent that exhibit 7 was cumulative of other exhibits
admitted during the habeas trial, particularly financial correspondence from
his bank. In addition, the petitioner testified without objection about receiv-
ing exhibit 7 at the property and described it as a communication from the
IRS concerning back taxes. Furthermore, it is undisputed that the petitioner
had not given exhibit 7 to Sobol prior to the suppression hearing. Although
the petitioner claims he did not look for the letter at the time because Sobol
failed to tell him such correspondence was important, the petitioner testified
that Sobol communicated to him prior to the suppression hearing about the
importance of mail located on the property. The habeas court noted in its
memorandum of decision that the petitioner appeared to contradict his own
testimony concerning Sobol’s alleged ineffectiveness in communicating the
importance of mail located on the property to the petitioner. Finally, the
habeas court, after noting the cumulative nature of the mail located on the
property, found that none of the petitioner’s clothes, toiletries, or other
personal items were found at the property. Even the one piece of the petition-
er’s personal property, an aeration system, found on the property was
addressed to the petitioner’s Danbury residence.