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 ...