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Bree v. Commissioner of Correction

Court of Appeals of Connecticut

April 23, 2019

JASON BREE
v.
COMMISSIONER OF CORRECTION

          Argued January 22, 2019

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Cobb, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Freesia Singngam Waldron, assigned counsel, for the appellant (petitioner).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Sheldon and Moll, Js.

          OPINION

          SHELDON, J.

         The petitioner, Jason Bree, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus, in which he claimed that trial counsel in his underlying criminal prosecution had rendered ineffective assistance in defending him against charges filed in connection with armed robberies of convenience stores in three Connecticut towns. On appeal, the petitioner claims that the habeas court erred in ruling that his trial counsel did not render ineffective assistance by failing (1) to consult with and to present testimony from an expert in audio-video forensics to challenge the reliability of closed-circuit television surveillance video evidence used by the state to identify him as the perpetrator in one of the robberies; (2) to timely object to and move to strike the nonresponsive testimony of the petitioner's alleged accomplice, Gabriel Santiago, identifying the petitioner's photograph in a photographic array as that of a perpetrator of another of the underlying robberies; and (3) to present the testimony of the petitioner's stepfather, Ronald Riebling, to bolster exculpatory testimony from his wife, Sue Riebling, the petitioner's mother. We disagree with the petitioner's claims and, therefore, affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to this appeal. In his underlying criminal prosecution, the petitioner was accused in separate informations of crimes arising from armed robberies at convenience stores in Shelton, Woodbridge and Ansonia. Two of these robberies are at issue in this appeal. The first robbery here at issue took place, as described by this court in affirming the petitioner's convictions on direct appeal, as follows: ‘‘On September 27, 2008, at approximately 6:30 a.m., Nalinjumar Patel was working at the Wooster Street Market, a convenience store in Shelton, when Gabriel Santiago entered the store, asked for loose cigarettes and inquired in what town the store was located. When Patel told Santiago that he was in Shelton and informed him that the store did not sell loose cigarettes, Santiago left. Soon thereafter, the [petitioner] and William Torres entered the store. The [petitioner] jumped behind the counter and took approximately ninety cartons of cigarettes while Torres pointed a gun at Patel, demanding his wallet. During the course of the robbery, a regular customer, Anthony Carroll, entered the store, and exclaimed: ‘What the hell is going on?' Carroll immediately left the store and telephoned the police. The [petitioner], Torres and Santiago drove away in a sky blue Infiniti.'' State v. Bree, 136 Conn.App. 1, 4, 43 A.3d 793, cert. denied, 305 Conn. 926, 47 A.3d 885 (2012).

         Surveillance cameras inside and outside of the store captured the robbery on videotape. At the conclusion of their initial investigation, however, the Shelton police had no leads as to the identities of the perpetrators. Detective Benjamin Trabka of the Shelton Police Department thus sent still photographs taken from the store's surveillance video to local newspapers to seek the public's help in identifying the perpetrators. On September 30, 2008, the Shelton Police Department received an anonymous tip that one of the three persons shown in the video was Santiago. Upon being located by the police, Santiago gave a statement implicating the petitioner in the Shelton robbery. When, however, Trabka presented Santiago with a photographic array that included a photograph of the petitioner, Santiago did not make an identification. Through his investigation, Trabka later learned that the petitioner owned a sky blue Infiniti automobile.

         The second robbery, as this court described it on the petitioner's direct appeal, took place as follows: ‘‘[W]hile Vamsi Makdhal was working at the counter of a Lukoil convenience store in Woodbridge and his cousin, Imran Sarfani, was completing paperwork in a back office, the [petitioner] entered the store. The [petitioner] placed a knife next to Makdhal's stomach and said ‘give me the cash.' The [petitioner] briefly held the knife at Makdhal's neck as well. Makdhal went over to the cash register and opened it, but was too frightened to give the [petitioner] the cash, so the [petitioner] took the cash himself. When the [petitioner] asked for cartons of cigarettes, Makdhal informed him that the cartons were kept in the back office. The [petitioner] took Makdhal to the back office. The [petitioner] took a garbage bag from the office, emptied it and told Sarfani to put cartons of cigarettes in the bag. At some point, the [petitioner] waved the knife at Sarfani. After Sarfani complied, the [petitioner] ran out of the store. Makdhal ran out of the store and was able to see the model of the car that the [petitioner] drove away in, [a Chrysler 300] and [its] partial license plate number.'' Id., 5-6.

         The Woodbridge robbery was also captured on videotape by the store's surveillance camera, and the video was recovered by the police. As in the Shelton case, no witness to the Woodbridge robbery was able to make an identification. Detective Robert Crowther of the Woodbridge Police Department therefore requested that a dispatcher from his department run various permutations of the partial license plate number that the victim had given him in an attempt to match it to a Chrysler 300. He eventually determined that the vehicle was owned by Enterprise Rental Car, which had rented it to the petitioner at the time of the robbery. Upon receiving this information, Crowther questioned the petitioner about the robbery after informing him only that the police knew that a vehicle he had rented had been used in the robbery and that they wanted to speak to him about it. During the course of the interview, the petitioner blurted out: ‘‘I don't know anything about putting no knife to anybody's neck.'' Crowther noted that he had not told the petitioner either what kind of weapon was used during the robbery or how it was used.

         Subsequently, Crowther contacted the petitioner's probation officer, Tricia Kolich, and ‘‘told [her] that [the police] had [surveillance video] of a robbery, in which they thought [the petitioner] was a suspect, and because [she] had [the petitioner] on probation, they were wondering would [she] be able to identify him in a video.'' Kolich met with Crowther to view the video and told him that the person depicted in it ‘‘[had] a lot of similar characteristics to [the petitioner], that [she recognized] the facial hair . . . the style of dress, and the kind of strut, or the walk, coming through the store, as being the same as [the petitioner].'' After further police investigation, the petitioner was arrested and charged in connection with both robberies and a third robbery that had been committed in Ansonia.

         Prior to trial, the petitioner's attorney, Vito Castignoli, filed several pretrial motions, including a motion in limine to preclude Kolich from identifying the petitioner in the store surveillance video of the Woodbridge robbery. He argued that the identification was tainted by the suggestive identification procedure employed by Crowther, who had interviewed Kolich. He claimed, more specifically, that Crowther had asked Kolich to identify the petitioner personally, identifying him by name, rather than asking her more generally if she recognized anyone in the video. Castignoli further argued that Kolich's identification of the petitioner should be precluded because it constituted a lay opinion about the ultimate issue in the case, and, thus, was inadmissible under State v.Finan, 275 Conn. 60, 68-69, 881 A.2d 187 (2005) (holding that whether defendant was one of two perpetrators of robbery shown on surveillance videotape was ultimate issue of fact in defendant's trial and to admit lay opinion testimony that defendant was shown on videotape was error). At the hearing on the motion, Kolich testified that ‘‘the person [in the video] has a lot of similar characteristics to [the petitioner], that [she recognized] the facial hair on [the person], the style of dress, and the kind of strut, or the walk, coming through the store, as being the same as [the petitioner].'' The court denied the motion in ...


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