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*********************************************** 
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 denying the petition, from which the petitioner, on the granting of certification, 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 exposure 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. Washington (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 attorney, 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 ineffective assistance of trial counsel in litigating the petitioner’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 Internal Revenue Service (IRS) that was offered by the petitioner.1 We disagree with the petitioner’s first and second 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 spotters 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 vehicles 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 proceeded 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 marijuana plants and two men, one of whom was later identified 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 holstered their weapons and asked the [petitioner] for identification. 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 greenhouse. 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 [petitioner] 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 identified 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 periodically, 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 connection 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 reasonable suspicion that he had engaged in criminal activity.

‘‘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 expectation 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 privacy in the property where the search occurred.

Defense counsel responded by arguing that the [petitioner’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 Appellate 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 contention: (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] mortgage 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 [petitioner] 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 residential 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 warrantless 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. Houghtaling, 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 determined that the petitioner did not have standing, our

Supreme Court held that the petitioner failed to establish 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 constitutionality 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 support of the motion to suppress. The petitioner also contends 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 principles 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 fourteenth 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 twopronged 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 demonstrate 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 reasonable probability that, but for counsel’s unprofessional 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 constituted a violation of the petitioner’s rights [to the effective 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 plenary review by this court unfettered by the clearly erroneous standard.’’ (Citations omitted; footnote omitted;

internal quotation marks omitted.) Jordan v. Commissioner 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 assistance was reasonable considering all the circumstances. 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 performance 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 counsel’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 conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome 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 [petitioner’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 investigation 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 considerably 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 investigations may not later be challenged as unreasonable.’’

(Internal quotation marks omitted.) Id., 681.

‘‘[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.’’ (Internal quotation marks omitted.) Meletrich 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 considering whether an attorney’s performance fell below a

constitutionally acceptable level of competence pursuant 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 presumption of professional competence extends to counsel’s investigative efforts; see Thompson v. Commissioner 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 rendered deficient performance by failing to inform the

petitioner of his right to testify at the suppression hearing. 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 Phravixay.

‘‘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. Commissioner 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 discussed with the petitioner what could occur at the suppression 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 decision 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 counsel and Sobol engaged in the following colloquy: ‘‘[The

Petitioner’s Habeas Counsel]: Did you advise [the petitioner] 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 multitude 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 brotherin-law, and so I never—I did not get into the hypothetical 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 likelihood, 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 testified 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 credible, 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 credibility of witnesses. See Flomo v. Commissioner of Correction, 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 strategy 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 previously has been rejected by our Supreme Court, which

held that a court may not penalize an accused for exercising 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 testimony could have resulted in the judge not accepting a

conditional nolo contendere plea and may have negatively 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 petitioner communicated on multiple occasions that he did

not want Phravixay to testify.

Crockett testified at the habeas trial that, if the petitioner 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 connection 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 reasonableness 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 process 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 defendant’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 constitutional 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 sentence 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 threatening 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 defendant arguably would be entitled to less consideration

for his plea than if he had chosen to accept responsibility 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 petitioner’s involvement with the marijuana grow operation. Although such evidence may have been of assistance 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. Certainly, the state and the court could have taken into

account the petitioner’s culpability in the grow operation 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 performance, in deciding not to present the testimony of

Phravixay, fell below an objective standard of reasonableness.

C

The petitioner also argues more generally that Sobol’s

asserted justifications for his approach to the suppression hearing were not reasonable. Specifically, the petitioner argues that minimizing the petitioner’s involvement in the property was antithetical to the motion

to suppress, Sobol did not have any reason to fear

antagonizing Phravixay, and his concern about potentially implicating Eichen in the crime was unreasonable.

The following additional facts are relevant to the

petitioner’s arguments. At the habeas trial, Sobol testified that his theory of defense was based on a threepronged 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 involvement 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 petitioner and his wife, and that he desired to avoid implicating 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 crossexamination of witnesses whose testimony would not

trigger the involvement of Phravixay and Eichen.

We first address the petitioner’s contention that minimizing his involvement in the property was not a reasonable strategy as it was antithetical to establishing

the petitioner’s standing to pursue the motion to suppress. 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 limited involvement with the property was based on what

the petitioner told him. Sobol stated that it was undisputed 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 limited 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. Commissioner of Correction, supra, 306 Conn. 681 (counsel

entitled to rely on information provided to him by petitioner).

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 Phravixay, was not a reasonable strategic decision. The

respondent contends that Sobol testified that the petitioner 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 implicated 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 petitioner 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 petitioner 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 respondent contends that the habeas court found that Eichen

faced possible, ongoing exposure under federal drug

laws at the time of the suppression hearing. The respondent 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 performance. 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 overcome the presumption that Sobol’s strategic decision

to avoid implicating Eichen was reasonable given the

petitioner’s firm conviction not to implicate his brotherin-law.

In sum, we conclude that the petitioner failed to

establish that Sobol’s approach to the case, and in particular 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 failure 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 specifically 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 respondent 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, sufficiently supported Sobol’s arguments and that the petitioner 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 strategy 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 petitioner’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 mandates 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 circumstances 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 petitioner’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 conduct, 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 suppress, 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 amendment 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 principles 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 quotation 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 caseby-case basis. . . . The burden of proving the existence 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 limited 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. Consequently, 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 considered.’’ (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 performance 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 involvement 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 information 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 attorneyclient privilege had been waived, requested that the

habeas court order Woolf to answer whether the draft

proffer was a rendition of the information that Phravixay 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 sustained 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: ‘‘Attorney 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 contents, 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 admitted 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 showing 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 Hoffkins 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 purposes . . . and is usable as proof to the extent of the

rational persuasive power it may have’’ (internal quotation 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 quotation 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 adjudication be given reasonable notice and opportunity to present 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 persons directly concerned in the event have been actually

or constructively notified of the pendency of the proceeding, 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 substance. 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 evidentiary 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 provenance.’’ 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 additional 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 challenge the search of the property. The court, in its memorandum 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 doctrine . . . 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 preserved or never raised at all in the trial court, nonetheless 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 documents at the property in a manner consistent with demonstrating that the petitioner had a reasonable expectation of privacy. The petitioner argues that the habeas

court’s ruling was premised on an incorrect interpretation 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 exception properly is identified are legal questions demanding

plenary review. . . . We review the trial court’s decision 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 decision 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 general 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 establishing 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 respondent objected on the grounds of hearsay and authenticity. 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 erroneously 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 constituted harmful error. ‘‘Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine 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 Connecticut, the burden to prove the harmfulness of [a nonconstitutional] 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 petitioner’s inability to pay his taxes and his potential insolvency. 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 suppression [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 property 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 suppress. The proper question is whether the habeas

court’s error in sustaining the objection to the admission of exhibit 7 likely affected the outcome of the

habeas trial. Put another way, had exhibit 7 been admitted 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 analysis. 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 evidentiary 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 principal 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 argument 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 evidence 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 reasonable 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 character 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 minimal 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 adequate 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 receiving 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 petitioner’s personal property, an aeration system, found on the property was

addressed to the petitioner’s Danbury residence.