author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. JASON FAISON
    (AC 28476)
    McLachlan, Gruendel and Borden, Js.

      Argued October 28, 2008
    officially released January 27, 2009

      Charles F. Willson, special public defender, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were John A. Connelly and Gail P. Hardy, state’s attorneys, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Jason Faison, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92 (a) (2) (A). He claims that the trial court improperly denied his motions (1) seeking immunity for a certain witness and (2) to introduce testimonial evidence from a defense investigator. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the summer of 2005, the victim, a nineteen year old female, was unemployed and without a home. The defendant invited the victim to move into the apartment he shared with his girlfriend, Jennifer Sierra, in Waterbury, and the victim accepted. Days later, the defendant notified the victim that she would have to help pay the rent. He also told her that he “had an idea,” namely, prostitution.

One week later, the victim began working as a prostitute. Three or four times a week, the defendant drove the victim from Waterbury to the same street comer in the Bronx, New York. The defendant was her pimp, and, after each day of work, she surrendered her earnings to the defendant. After a few weeks, the victim informed the defendant that she was miserable and no longer wanted to work for him, but the defendant “wouldn’t let [her] leave” and “was always around.” Approximately one month after first working for the defendant, the victim ran away one afternoon when the defendant left to play basketball. In the following weeks, the defendant called her cellular telephone several times each day, but the victim never answered.

More than one month later, on August 12, 2005, the victim received a call from Alisha Pickwood, a prostitute who worked on the same street comer as the victim. Pickwood told the victim that she, too, wanted to leave the world of prostitution and asked the victim to pick her up in the Bronx because she was homeless and penniless. The victim agreed and proceeded to the Bronx, where she met Pickwood. Upon arriving, the victim saw the defendant’s vehicle and informed Pick-wood that she had to leave. As the victim turned to leave, Pickwood struck her on the back of her head. The victim began to scream. At that moment, the defendant’s cousin, Ronald Troy Brooks, approached the victim and told her that he would kill her if she did not shut up. Brooks and Pickwood forced the victim into the vehicle driven by the defendant. The defendant cautioned the victim that she had made a big mistake by leaving him as the others in the vehicle punched and kicked the victim. Pickwood rifled through the victim’s purse and handed an eyebrow trimmer to Sierra, who was seated in the front passenger seat. Sierra then stabbed the victim in the arm with the trimmer.

The vehicle arrived at 35 Bellevue Street in Waterbury sometime thereafter. The victim was taken to the basement and ordered to disrobe. The victim complied because she “didn’t want them to kill me.” At that point, Brooks, Pickwood and Sierra, with the defendant’s encouragement, repeatedly struck the victim and Brooks raked her face against a concrete wall. They then tied the victim to a chair. Brooks poured buckets of cold water on the victim as Pickwood and Sierra whipped the victim with coat hangers. While this transpired, the victim was repeatedly asked if she wanted to go back to work for the defendant; she did not reply. The victim also was informed that they knew people who would kill her. Laughing, Pickwood and Sierra photographed the victim with their cellular telephone cameras. Eventually, the defendant, Brooks, Pickwood and Sierra left the basement to get food.

Roughly two hours later, the defendant and Brooks returned. They untied the victim, and Brooks digitally penetrated the victim’s vagina. The defendant exposed his penis and told the victim that unless she performed fellatio on him, Sierra would sodomize her with a stick. Scared, the victim complied. After ejaculating, the defendant asked the victim if she wanted another chance to work for him, and she said no. The victim then was permitted to dress and leave the property. Before she left, Brooks warned the victim not to “go to the cops because [he had] people around here.” After exiting 35 Bellevue Street, the victim approached a woman on the street, who took the victim to the police department. There, the victim provided sworn statements and had her injuries photographed. The police later transferred the victim to a hospital, where rape kit tests were performed. The defendant’s arrest followed.

The defendant subsequently was tried before the jury, which found him guilty of sexual assault in the first degree, kidnapping in the first degree and conspiracy to commit kidnapping in the first degree. The court rendered judgment accordingly and sentenced the defendant to a total effective term of forty years incarceration. From that judgment, the defendant appeals.

I

The defendant first claims that the court improperly denied his motion seeking immunity for Steven Natale, a friend of the defendant and former boyfriend of the victim. He contends that the court should have granted Natale immunity under the effective defense theory. Because the defendant has not properly preserved that claim, we decline to afford it review.

After the defendant subpoenaed Natale as a defense witness at trial, Natale invoked his fifth amendment rights and declined to testify. The court determined that Natale’s assertion of those rights was valid, and counsel for the defendant agreed. The defendant then asked the court to grant immunity to Natale:

“[Defense Counsel]: I’m asking that Your Honor order the state to grant him immunity so that he may testify.

“The Court: Do you have any authority for that proposition that the court has the ability to do that when all the case law is to the contrary?

“[Defense Counsel]: No.

“The Court: Anything else?

“[Defense Counsel]: And, if not, I ask that Your Honor give him immunity to testify.

“The Court: Do you have any case law that the court has the ability to give someone immunity?

“[Defense Counsel]: No, Your Honor.

“The Court: In fact, the case law is to the contrary. Anything else?

“[Defense Counsel]: Regarding those two motions, no.”

The defendant did not raise the issue of immunity for Natale at any other point in the trial proceedings.

On appeal, the defendant claims that the effective defense theory should apply. In State v. Holmes, 257 Conn. 248, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L. Ed. 2d 229 (2002), our Supreme Court discussed that doctrine. “Under the effective defense theory . . . the trial court has the authority to grant immunity to a defense witness when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding . . . immunity .... The Third Circuit [Court of Appeals] has held explicitly that under the effective defense theory [i]mmunity will be denied if the proffered testimony is found to be ambiguous [or] not clearly exculpatory . . . .” (Citations omitted; internal quotation marks omitted.) Id., 255. Notably, the Holmes court did not adopt the effective defense theory as a matter of Connecticut law, stating that it “need not decide whether [the effective defense] theory is a correct application of the due process or compulsory process clause.” Id.; see also State v. Kirby, 280 Conn. 361, 404, 908 A.2d 506 (2006).

It is fundamental that claims of error must be distinctly raised and decided in the trial court. As a result, Connecticut appellate courts “will not address issues not decided by the trial court. ” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998); see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (“[o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court”). Similarly, Practice Book § 60-5 provides in relevant part that our appellate courts “shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .’’As our Supreme Court recently observed, “[t]he reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007). Thus, the requirement of Practice Book § 60-5 that the claim be raised distinctly “means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).” (Emphasis in original; internal quotation marks omitted.) State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).

The defendant did not meet that requirement. His general exhortation to grant judicial immunity to Natale was without legal support. When the court inquired as to the basis of that request, the defendant provided none. The precise matter raised in this appeal—the effective defense theory—never was presented to the trial court. Accordingly, we decline to review the merits of that claim.

In his reply brief, the defendant seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). It is well settled that Golding cannot be raised for the first time by way of reply brief. See State v. McKenzie-Adams, 281 Conn. 486, 533 n.23, 915 A.2d 822 (“a party may seek to prevail on unpreserved claims ... if the claims are constitutional in nature, under Golding, if the party affirmatively requests and adequately briefs his entitlement to such review in his main brief’), cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007); Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005) (declining to review constitutional claims under Golding because habeas petitioner had not briefed entitlement to Golding until he filed reply brief); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (“[t]he reply brief is not the proper vehicle in which to provide this court with the basis for our review under [Golding] analysis” [internal quotation marks omitted]); Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 61, 929 A.2d 729 (court will not consider request for Golding review raised for first time in reply brief), cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

II

The defendant next claims that the court improperly denied his motion to introduce testimonial evidence from a defense investigator. At trial, the defendant sought to have his private investigator, Tony Smith, testify as to various statements made to him by Natale. We conclude that the court did not abuse its discretion in precluding that testimony.

At the outset, we note that the sixth amendment to the United States constitution “require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense.” (Citations omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002). It follows, then, that the right to present a defense “does not include a right to present evidence that properly is excluded under the rules of evidence.” State v. Sun, 92 Conn. App. 618, 629, 886 A.2d 1227 (2005); see also State v. West, 274 Conn. 605, 625, 877 A.2d 787 (constitution does not require defendant be permitted to present “ ‘every piece of evidence he wishes’ ”), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

Evidentiary determinations generally are reviewed under the abuse of discretion standard. “Unless an evi-dentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . 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 .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Griggs, 288 Conn. 116, 136-37, 951 A.2d 531 (2008).

The following additional facts are germane to the defendant’s claim. Following the denial of the defendant’s motion seeking immunity for Natale, the defendant moved to present, in lieu of Natale’s testimony, Smith’s testimony “as to what Mr. Natale told him.” The state objected to that testimony on the ground of hearsay. The court then permitted Smith to testify as an offer of proof outside the presence of the jury. On direct examination, Smith testified that he interviewed Natale on February 28, 2006. Smith testified that Natale told him that he knew the victim and that the victim previously had falsely accused him of having a gun and holding her against her will. Smith further testified that Natale told him that the victim had told Natale that she had lied about those accusations and that she was lying in the present case. Smith testified that Natale also stated that the victim had made false allegations against a man named Matt that led to a conviction and a sentence of ten years imprisonment. Smith testified that Natale stated that the victim admitted to him that “she lied about the allegations regarding [the defendant].” Smith testified that he prepared a report concerning his interview with Natale. On cross-examination, Smith admitted that he lacked any personal knowledge concerning the matter to which he had just testified. In response to an inquiry from the court, Smith testified that Natale had not signed a written statement, that Nataie’s statements were not made under oath and that the interview involved multiple conversations with Natale.

Following that offer of proof, the defendant moved to admit Smith’s testimony under the residual exception to the hearsay rule. In response, the state argued that Smith’s testimony was not supported by any guarantees of trustworthiness or reliability. The court agreed with the state and precluded that testimony.

With respect to the principles that govern application of the hearsay rule in criminal cases, “[a]n 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. ... A hearsay statement that does not fall within one of the traditional exceptions to the hearsay rule nevertheless may be admissible under the residual exception to the hearsay rule provided that the proponent’s use of the statement is reasonably necessary and the statement itself is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.” (Citations omitted; internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 812, 865 A.2d 1135 (2005); see also Conn. Code Evid. § 8-9. A court’s conclusion as to whether certain hearsay statements bear the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule is reviewed for an abuse of discretion. State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007).

In the present case, several considerations support the court’s conclusion not to admit under the residual exception the hearsay and double hearsay statements contained in Smith’s testimony. First, Natale did not make his statements under oath, a critical component of the trustworthiness and reliability calculus. See State v. Henry, 72 Conn. App. 640, 663, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). Second, Natale made his statements to a private investigator rather than law enforcement personnel. As such, Natale did not face the prospect of prosecution should his statements prove to be false. See General Statutes § 53a-157b (a) (“person is guilty of false statement in the second degree when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function”). Third, in State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985), the court stated that “trustworthiness and reliability can be found in a variety of situations,” including when the declarant did not know the defendant and provided the statement to the police. Id., 665. Not only did Natale not make the statements to the police, he further was a friend of the defendant. That friendship undermines the trustworthiness and reliability of his statements. See State v. Oquendo, 223 Conn. 635, 668, 613 A.2d 1300 (1992); State v. Bryant, 61 Conn. App. 565, 576, 767 A.2d 166 (2001). Natale’s statement that the victim previously had accused him falsely of having a gun and holding her against her will likewise raises a question as to the trustworthiness and reliability of his statements. In that vein, we note that “cross-examination has appropriately been described as the greatest legal engine ever invented for the discovery of truth. . . . [A]n important function of cross-examination is the exposure of a witness’ motivation in testifying.” (Citation omitted; internal quotation marks omitted.) State v. Oquendo, supra, 668. Natale’s unavailability for cross-examination diminished the trustworthiness and reliability of his statements. Id. Indulging every reasonable presumption in favor of upholding the court’s ruling, we conclude that the court did not abuse its discretion in precluding Smith’s testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The court further noted that “[t]he effective defense theory has not been well received by the other Circuit Courts of Appeals.” State v. Holmes, supra, 257 Conn. 255 n.7; see also United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991) (effective defense theory rejected because “it would violate separation of powers to recognize an inherent judicial right to grant immunity when immunity is a legislative creation explicitly entrusted to the executive branch” and because it “could also impair the subsequent prosecution of the witness”), cert. denied, 504 U.S. 910, 112 S. Ct. 1940, 118 L. Ed. 2d 546 (1992); United States v. Angiulo, 897 F.2d 1169, 1191 (1st Cir.) (following adoption of effective defense theory by United States Court of Appeals for the Third Circuit, “theory has been rejected by virtually every other court that has considered the issue”), cert. denied sub nom. Granito v. United States, 498 U.S. 845, 111 S. Ct. 130, 112 L. Ed. 2d 98 (1990).


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    CURTIS STEVENS v. COMMISSIONER OF CORRECTION
    (AC 27924)
    DiPentima, McLachlan and Foti, Js.

      Argued October 24, 2008
    officially released January 27, 2009

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris A. Pelosi, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

In this appeal from the denial of his petition for a writ of habeas corpus, the petitioner, Curtis Stevens, claims that the habeas court improperly concluded that he was not deprived of effective assistance of trial counsel. We affirm the judgment of the habeas court.

On June 28,1989, the petitioner pleaded guilty under the Alford doctrine to one count of the crime of murder in violation of General Statutes § 53a-54a, and five counts of the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). During the plea canvass, the prosecutor summarized the factual background of each charge against the petitioner as well as the evidence the state was prepared to present should the matter proceed to trial. The state’s evidence included eyewitness identifications of the petitioner as well as his inculpatory statements related to the homicide. The court confirmed that the petitioner understood, from his communications with his counsel, Christopher Cosgrove, that the state had evidence against him for each of the crimes with which he was charged and that the state was prepared to prove that the petitioner had committed those crimes. The petitioner affirmed that he understood the Alford plea and that he was pleading because of the high likelihood that he would be convicted. The court questioned the petitioner with regard to the minimum and maximum sentences he could receive on each charge and confirmed that the petitioner understood that should the court accept the plea agreement, he would receive a total effective sentence of sixty years imprisonment, execution suspended after forty years.

Pursuant to the plea agreement, on August 10, 1989, the petitioner was sentenced to twenty-five years incarceration on the murder charge and to twenty years incarceration, execution suspended after ten years, and five years probation on three of the robbery charges. Also pursuant to the plea agreement, the petitioner was sentenced to ten years incarceration on the remaining two robbery charges. The court ordered that the sentences on the first four robbery charges run consecutively and that the sentence on the remaining robbery charge as well as the murder charge run concurrent to each other. The court recommended no community release. Thus, the petitioner was sentenced to a total effective term of sixty years in prison, execution suspended after forty years, with five years probation. The court also ordered that the petitioner’s sentence run concurrently with his parole on a previous sentence. The petitioner did not appeal from the judgment of conviction.

In his amended habeas petition, filed September 17, 2005, the petitioner alleged ineffective assistance of counsel, claiming that his “[t]rial counsel advised [him] that he would be eligible for parole after serving only 50 [percent] of his sentence, even though by statute [he] cannot obtain parole eligibility in his sentence for murder.”

At the habeas trial, the petitioner testified that when he was deciding whether to plead guilty, one of the factors in his decision was his understanding, on the basis of conversations with Cosgrove, that “the murder would be the controlling sentence and that [he] would be eligible for parole after approximately [50] percent of [the] sentence.” He clarified that Cosgrove “didn’t say exactly right after the murder [sentence]. He just told me [50]—after [50] percent of the total sentence.” He further testified that had he not been told that he would be eligible for parole, he would not have pleaded guilty because he “didn’t do all of the robberies” and believed that he had a successful defense to the murder charge because the witnesses’ descriptions of the perpetrator were of a man who did not look like him. The petitioner further stated, however, that on the basis of the testimony at the probable cause hearing, “I don’t believe I would have been successful at trial,” and that “I didn’t feel as though I had a chance with the court system, and it is the reason that I took the plea that was given to me.”

Cosgrove testified that he did not recall discussing parole eligibility with the petitioner but stated that he knew that there would be no parole eligibility on the murder charge. He also testified that he “believed that once the murder sentence had been completed, that there would be the possibility of parole eligibility on the remainder of the sentence” and that he may have communicated this belief to the petitioner.

The court denied relief on November 4, 2005, in an oral decision. The court found that Cosgrove “did not tell [the petitioner] that he would be eligible for parole at the [50] percent mark” and, citing Hernandez v. Commissioner of Correction, 82 Conn. App. 701, 846 A.2d 889 (2004), specifically found that Cosgrove did not misadvise the petitioner. The court credited the testimony of Cosgrove over that of the petitioner. The court further stated: “[E]ven if attorney Cosgrove had told [the petitioner] that he would be eligible for parole [at] the [50] percent mark in the pleadings in this case, this court finds that there is no reasonable probability that the result of trial would have been different. [The petitioner], himself, admits that had he gone to trial, he would have been convicted.” On July 14,2006, the court granted certification to appeal.

On appeal, the petitioner claims that the court improperly concluded that he was not deprived of effective assistance of trial counsel. Additionally, the petitioner argues that the court used the incorrect standard in determining whether he suffered prejudice as a result of his trial counsel’s advice. We disagree.

We begin with the standards that govern our analysis of the petitioner’s appeal. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 62, 951 A.2d 520 (2008).

Under the familiar Strickland standard for ineffective assistance of counsel claims, the petitioner must establish that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. [Strickland v. Washington, supra, 466 U.S. 688, 694].” (Emphasis in original; internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 288 Conn. 63. “Under the test in Hill v. Lockhart, [474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial. [Id.]” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). “A reasonable probability is one which is sufficient to undermine confidence in the result.” Ruffin v. Commissioner of Correction, 106 Conn. App. 396, 399, 943 A.2d 1105, cert. denied, 286 Conn. 922, 949 A.2d 481 (2008). A petitioner asserting a claim of ineffective assistance of counsel must surmount this considerable burden of proof before he is entitled to relief. Robichaud v. Commissioner of Correction, 80 Conn. App. 561, 564, 836 A.2d 1216 (2003), cert. denied, 268 Conn. 912, 845 A.2d 415 (2004).

The petitioner argues that “the evidence demonstrates that the petitioner discussed parole eligibility with his lawyer and certainly was not told that for him, parole did not exist.” The petitioner maintains that because, at the time of his plea, parole did not exist for definite sentences, any advice regarding parole “other than there is no parole” was “patently erroneous.” We disagree.

To satisfy the first prong of the Strickland test, the petitioner bears the burden of establishing that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment.” (Internal quotation marks omitted.) Hill v. Commissioner of Correction, 103 Conn. App. 641, 645, 932 A.2d 413, cert. denied, 284 Conn. 925, 933 A.2d 726 (2007). “[T]he petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Leatherwood v. Commissioner of Correction, 105 Conn. App. 644, 647, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008). “Our review requires us to indulge in the presumption that trial counsel met the standard of care required for effective assistance of counsel. The burden is on the petitioner to overcome that presumption.” Lacks v. Commissioner of Correction, 87 Conn. App. 225, 231-32, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).

At the habeas trial, the petitioner testified that Cos-grove told him that he would be eligible for parole “after [50] percent of the total sentence.” The court, however, did not credit the petitioner’s testimony. Instead, it credited Cosgrove’s testimony that he “d[id] not recall specifically discussing parole eligibility” with the petitioner and that he knew that “murder has never been a parole eligible conviction.” Cosgrove testified that he could not recall whether he communicated to the petitioner his understanding that there would be a possibility of parole eligibility on the remainder of the petitioner’s sentence. In crediting Cosgrove’s testimony over the petitioner’s, the court noted Cosgrove’s extensive experience and “the fact that [the petitioner] stands to gain something if he testifies less than truthfully . . . .” The court concluded that Cosgrove did not misadvise the petitioner, and the petitioner has not challenged that finding as clearly erroneous.

It is well settled that this court “does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 741, 937 A.2d 656 (2007). The petitioner has presented no evidence that Cos-grove’s representation was “not within the range of competence displayed by lawyers with ordinary training and skill in criminal law . . . .” (Internal quotation marks omitted.) State v. Aquino, 89 Conn. App. 395, 406, 873 A.2d 1075 (2005), rev’d on other grounds, 279 Conn. 293, 901 A.2d 1194 (2006). We note that the “ ‘[t]he right to counsel is not the right to perfect counsel’ Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 71, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008); and that an inaccurate statement of law does not constitute assistance that is, per se, outside of the range of reasonable representation. Myers v. Manson, 192 Conn. 383, 396, 472 A.2d 759 (1984); see also Yarboroughs. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) (“[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight”). Thus, we conclude that the petitioner failed to show that his attorney’s performance was ineffective.

Although we conclude that the petitioner has not met his burden of demonstrating that his trial counsel’s performance fell below an objective standard of reasonableness, we also consider the second prong of the Strickland analysis. In its oral decision rejecting the petitioner’s claim of ineffective assistance, the court employed an incorrect standard, stating that even if the petitioner had shown that his attorney provided erroneous information regarding parole eligibility, “there is no reasonable probability that the result of trial would have been any different.” Instead, the correct standard to apply when determining prejudice in the guilty plea context is whether the petitioner has shown that “he actually was prejudiced in that, but for counsel’s ineffective assistance, the petitioner would not have pleaded guilty.” Gonzalez v. Commissioner of Correction, 108 Conn. App. 93, 95, 946 A.2d 1266 (2008). Nevertheless, we affirm the court’s conclusion that the petitioner failed to prove prejudice, albeit on different grounds. See State v. Johnson, 289 Conn. 437, 450 n.16, 958 A.2d 713 (2008) (“[a]s this court repeatedly has observed, if a trial court reaches a correct decision but on mistaken grounds, an appellate court will sustain the trial court’s action if proper grounds exist to support it”).

The petitioner argues that he was prejudiced because it was with the “misinformation about the opportunity for parole” provided by Cosgrove that the petitioner “weighed the decision whether to accept a plea offer that could well mean the rest of his life in prison or go to trial on multiple charges . . . knowing that a conviction on all charges would almost certainly mean the rest of his life in prison, and even conviction of some charges could effectively result in a life sentence.” We disagree.

We conclude that the petitioner has failed to show that had he known that he would be ineligible for parole, he would not have pleaded guilty and would have insisted on a trial. See Johnson v. Commissioner of Correction, supra, 285 Conn. 941. In its oral decision, the court noted that the petitioner testified that he believed he would have been convicted had he gone to trial. See Boyd v. Commissioner of Correction, 96 Conn. App. 26, 33, 898 A.2d 838 (“[i]t is the trier’s exclusive province to . . . determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony” [internal quotation marks omitted]), cert. denied, 280 Conn. 921, 908 A.2d 543 (2006). Moreover, during the plea canvass, the petitioner affirmed that he understood the maximum penalty he would face should he be found guilty at trial, a sentence that exceeded the plea agreement by twenty years. As the United States Supreme Court noted in Hill v. Lockhart, supra, 474 U.S. 60, “[the] petitioner’s mistaken belief that he would become eligible for parole after serving [a percentage] of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted.” (Emphasis added.) Id. The petitioner failed to present any credible evidence that he would not have pleaded guilty absent his misunderstanding regarding parole eligibility. See Myers v. Manson, supra, 192 Conn. 396 (“the [petitioner] must prove that [his attorney’s] misstatement was a significant factor that triggered [the] guilty plea”). Accordingly, we conclude that the habeas court properly denied the petitioner’s claim of ineffective assistance of counsel. See Bailey v. Commissioner of Correction, 107 Conn. App. 362, 368-69, 947 A.2d 2 (absent evidentiary showing of deficient performance and actual prejudice, petitioner not entitled to relief), cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petitioner’s remaining charge, relating to theft of a firearm, was nolled by the state pursuant to the plea agreement.

       The petitioner originally filed an amended petition for a writ of habeas corpus on March 7,1995. The first petition was dismissed on April 17, 1996. The petitioner’s second petition for a writ of habeas corpus was dismissed on May 20, 1998.

       The petitioner also alleged actual innocence (count two) and, in a second amended petition filed on January 21, 2006, claimed that the parole board was unlawfully denying him parole (count three). The court denied relief on count two in an oral decision on January 13, 2005, and on count three in a memorandum of decision filed May 24, 2006. Counts two and three are not at issue in this appeal.

       We note that the court subsequently signed a transcript of its ruling in compliance with Practice Book § 64-1.

       The petitioner filed a motion for articulation on April 25, 2007, which the court denied. On May 21, 2007, the petitioner filed a motion for review of the denial of his motion for articulation. This court granted the motion to review but denied the requested relief.

       The petitioner is correct in his statement that the prejudice prong in Hill requires him to show that but for counsel’s errors, the petitioner would have gone to trial, but does not require the petitioner to show a likelihood of success at trial. It is appropriate, however, for us to consider the petitioner’s understanding of the likelihood of a conviction had he proceeded to trial and the possible sentence resulting from that conviction in comparison to the sentence he faced as a result of his election to plead guilty. As our Supreme Court noted in State v. Collins, 207 Conn. 590, 596, 542 A.2d 1131 (1988), “[m]any factors may have been considered by the [petitioner] and his attorney in determining whether to plead guilty to the charges. No doubt of great significance was the strength of the admissible evidence, the [petitioner’s] maximum exposure if convicted, and his possible release date if imprisoned.”


author: PELLEGRINO, J.

text:
    TIMOTHY ROBINSON v. COMMISSIONER OF CORRECTION
    (AC 29281)
    Gruendel, Robinson and Pellegrino, Js.

      Argued October 22, 2008
    officially released January 27, 2009

      Joseph Visone, special public defender, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Angela R. Maechiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Timothy Robinson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his third amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel provided ineffective assistance. We dismiss the petitioner’s appeal.

The facts giving rise to this case are set forth in State v. Robinson, 81 Conn. App. 26, 838 A.2d 243, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). “On September 19, 1999, the complainant, J, and a friend went to a pool hall in New Haven, where J saw the [petitioner], with whom she was acquainted. Upon learning that J did not have a way to get home, the [petitioner] offered her a ride, which she accepted. J told the [petitioner] that she wanted to return home. The [petitioner] responded that it was his birthday and that he wanted to ‘go out and do something.’ She again told the [petitioner] that she wanted go home. Instead, he drove onto Route 34 and eventually arrived at Peck Place School in Orange. J demanded that the [petitioner] take her home, threatening to walk if he did not comply. The [petitioner], however, again refused, and J exited the car. The [petitioner] then persuaded her to get back into the vehicle by promising to take her home.

“The [petitioner] turned off the ignition. J again attempted to exit the car, whereupon the [petitioner] put his arms around her to prevent her from leaving. Although initially she was able to leave the car, the [petitioner] then blocked her path. J ran away, and the [petitioner] chased her, dove at her feet and then dragged her back to his vehicle. She again managed to free herself and ran toward a nearby home owned by Stanley Cohen. Cohen opened the door and called the police upon hearing J banging on his door and screaming that ‘he’s going to kill me.’

“Officer Jude Fedorchuck of the Orange police department responded to the call. While he was speaking with J outside the Cohen home, the [petitioner] drove by the residence. J identified the [petitioner] as her attacker, and Officer Michael Morin of the Orange police department placed the [petitioner] under arrest.” Id., 28-29.

After a jury trial, the petitioner was convicted of kidnapping in the second degree in violation of General Statutes § 53a-94 and unlawful restraint in the first degree in violation of General Statutes § 53a-95, and was acquitted of attempt to commit sexual assault in the first degree. The court sentenced the petitioner to twenty years incarceration, suspended after thirteen years, plus seven years special parole. The petitioner filed a direct appeal from that judgment, which was affirmed by this court. Id., 28. On August 13, 2004, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel, and filed a third amended petition on June 2, 2006. The habeas court conducted a trial on the third amended petition and on September 14, 2007, issued a memorandum of decision denying the petition, finding that there was no deficient performance on the part of trial counsel or any prejudice to the petitioner. The court then denied the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner challenges the denial of his petition for certification to appeal, as well as the judgment denying his third amended petition for a writ of habeas corpus. Our standard of review is well settled. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal.” (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn. App. 738, 740-41, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008).

In the present matter, the petitioner claims that his trial counsel was ineffective for failing (1) to locate Sharese Pelkey-Clark, a friend of the complainant, so she could testify at trial, and (2) to call as a witness Officer Robert J. Losty of the New Haven police department. The petitioner claims that these witnesses could have been used to impeach the complainant’s testimony that she was not a prostitute who exchanged sex for drugs. The petitioner argues before this court, as he did before the habeas court, that the failure to call witnesses to impeach the credibility of the complainant brings this case squarely within the holding of State v. DeJesus, 270 Conn. 826, 856 A.2d 345 (2004), in which evidence of a victim’s prior history of prostitution was held admissible.

In DeJesus, the defendant was convicted of sexual assault in the first degree and kidnapping in the first degree. The trial court held that evidence of the complainant’s history of prostitution was not admissible pursuant to General Statutes § 54-86f, also known as the “rape-shield law.” The defendant, on appeal, argued that the evidence of prostitution was relevant to whether the complainant consented to the sexual intercourse and, therefore, should have been admissible under § 54-86f (4). Our Supreme Court agreed and, because the state’s case relied on the credibility of the complainant, held that the evidence of the complainant’s history of prostitution was admissible under § 54-86f (4), as it was relevant and material to a critical issue in the case, specifically, whether the sexual intercourse was consensual. Id., 837, 842.

In the present matter, the petitioner argues that just as in DeJesus, the complainant’s testimony was the sine qua non of the state’s case, and, therefore, her alleged history of prostitution should have been admissible to impeach her credibility. The petitioner argues that his trial counsel was deficient by not introducing such evidence, which then prejudiced the petitioner, as the jury was unable to determine that the complainant went willingly with the petitioner and that her testimony as to the kidnapping and unlawful restraint charges was patently false. The petitioner argues that had the complainant’s testimony been impeached with the evidence of her alleged history of prostitution, the jury would not have found the petitioner guilty on the remaining two charges.

Our standard of review of a habeas court’s judgment on a claim of ineffective assistance of counsel is well settled. “Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by [an appellate] court unfettered by the clearly erroneous standard. ... To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. ... A reasonable probability is one which is sufficient to undermine confidence in the result.” (Citations omitted; internal quotation marks omitted.) Vasquez v. Commissioner of Correction, 111 Conn. App. 282, 285-86, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008). Given this standard, we turn to the petitioner’s specific claims.

I

The petitioner first claims that his trial counsel was ineffective for failing to call Pelkey-Clark at trial. Trial counsel testified at the habeas proceeding that he did hire an investigator to locate Pelkey-Clark but that he was unable to find her. Habeas counsel, however, was able to locate her, and she testified at the habeas proceeding that she was a friend of the complainant’s and knew her well. She further testified that she had observed the complainant on two occasions exchange a sexual favor for drugs and that she knew the complainant was a prostitute. The petitioner argues that if trial counsel had introduced Pelkey-Clark’s testimony to impeach the credibility of the complainant, the jury would then have discredited the complainant’s entire testimony that she was kidnapped and restrained against her will. We disagree.

Our Supreme Court has stated that “in the context of a claim for ineffective assistance of counsel, [t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 64, 951 A.2d 520 (2008). The complainant’s alleged history of prostitution would be helpful to the petitioner only in establishing a defense of consent to the charge of attempt to commit sexual assault. See State v. DeJesus, supra, 270 Conn. 837 (victim’s prior arrest for prostitution would have been relevant to issue of consent); Demers v. State, 209 Conn. 143, 159, 547 A.2d 28 (1988) (evidence of prostitution can be admissible when consent is defense to sexual acts). The jury, however, found the petitioner not guilty on that charge.

The petitioner has not shown that the prostitution evidence was relevant as a defense to the charges of kidnapping or unlawful restraint but, rather, argues that the evidence should have been admissible to impeach the credibility of the complainant. The jury, however, already weighed the credibility of the complainant and found the petitioner not guilty on the attempt to commit sexual assault charge while finding him guilty as to the two remaining charges. “[Bjecause the jury has the occasion to scrutinize the behavior, deportment and attitude of the witnesses and to measure their credibility, [i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it is within the province of the jury to believe all or only part of a witness’ testimony. . . . [T]he jury is the final arbiter as to the credibility of any witness.” (Citation omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 345, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009).

Moreover, this court has previously held that there was ample evidence presented to support the jury’s verdict on the charges of kidnapping and unlawful restraint. State v. Robinson, supra, 81 Conn. App. 34. As the prostitution evidence was relevant as a defense only to the charge of attempt to commit sexual assault, of which the petitioner was acquitted, the petitioner has failed to demonstrate that his trial counsel’s performance was deficient for failing to call Pelkey-Clarke as a witness. Accordingly, the petitioner has failed to make a substantial showing that a reasonable probability existed that, but for counsel’s ineffective representation, the outcome would have been different. We conclude, therefore, that the court did not abuse its discretion in finding that there was no deficient performance on the part of trial counsel or any prejudice to the petitioner on this issue.

II

We next address the petitioner’s claim that his trial counsel was ineffective in that he should have called Losty, who would have testified, as he testified at the habeas proceeding, that the complainant was a well-known prostitute and that he had arrested her for prostitution after the incident that gave rise to this case. At the habeas trial, Losty testified that he had observed the complainant out late at night with known prostitutes and that he arrested her for prostitution on March 3, 2000.

“[Trial] counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985). The incident for which Losty arrested the complainant for prostitution occurred after the incident in this matter but before the petitioner’s criminal trial and was reduced by a substitute information to a breach of the peace. Further, as the habeas court stated in its memorandum of decision, the complainant had no record of any criminal convictions for prostitution as of the date of the habeas trial. As a reasonable investigation would not have turned up a conviction for prostitution at the time of the petitioner’s criminal trial, the petitioner, therefore, has failed to demonstrate that his trial counsel’s performance was deficient for failing to call Losty as a witness. In any event, even if trial counsel had known of Losty and called him to testify, his testimony would not have been relevant to the issues of kidnapping and unlawful restraint and would not have changed the final result of this case. See State v. DeJesus, supra, 270 Conn. 838; Demers v. State, supra, 209 Conn. 159. Accordingly, the petitioner has failed to make a substantial showing that a reasonable probability existed that, but for counsel’s ineffective representation, the outcome would have been different. We conclude, therefore, that the court did not abuse its discretion in finding that there was no deficient performance on the part of trial counsel or any prejudice to the petitioner.

Ill

Last, we address the petitioner’s misplaced reliance on State v. DeJesus, supra, 270 Conn. 826. As the court found, and we agree, the present case differs from DeJesus is several aspects. Although in both cases the defendants were charged with similar crimes, in DeJesus the jury found the defendant guilty of sexual assault. The evidence kept out in DeJesus, which was similar to the evidence that the petitioner claims should have been introduced at his trial, would have been relevant solely to the issue of consent as to the charge of attempt to commit sexual assault, of which the petitioner was not convicted. See State v. DeJesus, supra, 845; Demers v. State, supra, 209 Conn. 159. The petitioner argues that if the complainant’s credibility had been attacked, then the juiy may not have found him guilty on the counts of kidnapping and unlawful restraint.

As previously stated, it appears that the complainant’s credibility was challenged, as the jury did not believe the evidence on the attempt to commit sexual assault charge but nonetheless believed the evidence relative to the other charges. Further, unlike the situation in DeJesus, in the present matter the state had a strong case, especially the testimony of Cohen, who testified that the complainant came to his house on the evening of the incident, banging on his glass door and yelling, “he’s going to kill me,” and that she was “beyond frightened. She was shaking.” Also, the petitioner testified that once the complainant ran from his car, he “caught up to her from behind . . . grabbed her in a bear hug and . . . picked her up. . . . [S]he’s kicking and struggling . . . [w]e both fell to the ground. As I fell to the ground, she broke free and ran away.” As the state’s case did not depend solely on the complainant’s credibility and was strengthened by additional evidence, the admission of evidence as to the complainant’s alleged history of prostitution would not have changed the outcome of the case. The petitioner was acquitted of the charge of attempt to commit sexual assault, to which the alleged prostitution evidence would have been relevant and material, and there was additional evidence supporting the charges of kidnapping and unlawful restraint. State v. Robinson, supra, 81 Conn. App. 34. The result would not have been different.

In light of the foregoing conclusions, the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for certification to appeal are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Thus, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner’s first petition for a writ of habeas corpus included two additional claims: ineffective assistance of appellate counsel and actual innocence. His second amended petition, however, included just the additional claim of ineffective assistance of appellate counsel. The court, in its memorandum of decision, noted that the petitioner did not introduce any evidence as to the claim of ineffective assistance of appellate counsel and, therefore, that claim was deemed to be abandoned.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. LEONARD T. SHUCK
    (AC 28923)
    Flynn, C. J., and Gruendel and Hennessy, Js.
    Argued October 30, 2008
    officially released January 27, 2009

      Norman A. Pattis, with whom, on the brief, was Jason M. Lipsky, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Karen Lee Diebolt, deputy assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Leonard T. Shuck, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the court violated his constitutional right to due process by failing to give him full access to his probation file. He also claims prosecutorial impropriety, alleging that the prosecutor did not inform the court of a prior order of the court that conducted pretrial proceedings concerning the availability of the probation file. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On November 17, 2004, the defendant was sentenced by the court to one year imprisonment, execution suspended, and three years probation. On or about September 11, 2006, the defendant was arrested pursuant to a warrant for failing to report to his probation officer on five separate occasions in violation of the conditions of his probation. During the pretrial stage of the violation of probation proceeding, the defendant had been represented by counsel; however, the court permitted counsel to withdraw his representation. After a three week continuance for the defendant to hire another attorney, the defendant went forward pro se, with a public defender acting as standby counsel. After the court canvassed the defendant regarding self-representation, the defendant expressed concern over not having been given access to his probation file. In response to the defendant’s concern, the court stated that at the defendant’s next appearance in court, “[t]he whole file will be here. And, [addressing the prosecutor], to the extent, if that’s something that’s going to be relied upon by the witness, have [your] witness bring it on [April 26, 2007] for the legal hearings. Okay? So, that way, [the defendant] can also get copies of any particular pages, if necessary.”

At the next status conference, before a different judge, the defendant again expressed his concern over the probation file. The court in response stated that the file would be in court at the hearing but repeatedly explained the confines of the violation of probation hearing, stating that it was going to hear testimony regarding only the failure to report, but if there was more to the case, it would allow access to the file on those issues.

Throughout the three day violation of probation hearing, the defendant asked the three probation officers who testified as to his failure to report as ordered if certain items, such as the transcript from the underlying sentencing and letters he had written to probation officers, were in the file. The court ruled that such items were irrelevant to the determination of whether the defendant failed to report to his probation officer on the alleged dates. The court found that the defendant failed to report on the five dates alleged and sentenced him to one year imprisonment, execution suspended after thirty days, and one year of probation with conditions. This appeal followed.

The defendant first claims that his right to due process of law was violated at the probation revocation hearing. Specifically, he claims that his rights were violated when he was not given access to the probation file after a court had ordered that he have such access and when the court allowed witnesses to testify as to the dispositional phase of the probation hearing prior to a determination of liability in the evidentiary phase. The state argues that the court never ordered that the defendant be given unlimited access to the probation file and that he was not prevented from presenting evidence in a logical manner. We agree.

“[T]he due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation.” (Internal quotation marks omitted.) State v. Roy D., 95 Conn. App. 686, 693, 897 A.2d 733, cert. denied, 280 Conn. 904, 907 A.2d 94 (2006). “Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.” (Citation omitted; internal quotation marks omitted.) State v. Gauthier, 73 Conn. App. 781, 789, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003).

A thorough review of the transcripts reveals that the defendant did not file any discovery motions and never clearly asked for complete access to his probation file. The court never ordered that the defendant be given complete access to the file; rather, the order was for the file to be brought to court so that the defendant could have access to relevant material contained in it. Further, the defendant was given copies of the arrest warrant and affidavit, and, additionally, he had copies of the order of probation and the conditions of probation, which were the only two exhibits that the prosecutor put into evidence. The court repeatedly informed the defendant of the essential elements that the court was considering in the case and that it would not get into facts that were immaterial. The defendant does not claim that any of the material in the probation file was exculpatory and that disclosure therefore was required pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The defendant claims prosecutorial impropriety because the prosecutor did not alert the court to a prior ruling on the probation file. Because we find, however, that there was no order from the court allowing the defendant unlimited access to his probation file, we further find that the prosecutor did not act improperly in not reporting such a falsity to the court, as the defendant claims.

The presentation of witnesses testifying regarding the second stage of the violation of probation proceeding also did not violate the defendant’s due process rights because he was still afforded the opportunity for cross-examination of the witnesses, and he does not claim that the order of presentation affected the outcome. The evidence was overwhelming and uncontroverted that the defendant failed to meet with his probation officer on five occasions after he had been told to report, and the violation of probation proceeding complied with the requirements of the fourteenth amendment.

The judgment is affirmed.

       The defendant did not file any motions for discovery.

       Our Supreme Court has “recognized that revocation of probation hearings, pursuant to [General Statutes] § 53a-32, are comprised of two distinct phases, each with a distinct purpose. ... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 375-76, 944 A.2d 276 (2008).

       We note that this case was tried to the court and that during the state’s case-in-chief, the court suggested hearing testimony as to the second phase rather than potentially having to call the witnesses back for another day of testimony. The state had no objection, and the defendant claimed only that the testimony of his probation officer was irrelevant to the second phase determination, but the defendant did not object. The court, however, did not hear second phase evidence at that time, due to the defendant’s concerns. The second phase testimony was taken “out of order” during the defendant’s case-in-chief because his questions concerned phase two issues, well beyond the scope of the first phase. The defendant also presented his girlfriend to testily about second phase issues before the end of the first phase.