Bree v. Commissioner of Correction ( 2019 )

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JASON BREE v. COMMISSIONER OF CORRECTION
(AC 40933)
DiPentima, C. J., and Sheldon and Moll, Js.
Syllabus
The petitioner, who had been convicted of several crimes in connection
with armed robberies at three convenience stores, sought a writ of
habeas corpus. He claimed, inter alia, that his trial counsel provided
ineffective assistance by failing to present testimony from an audio-video
forensics expert to challenge the reliability of closed-circuit television
surveillance video that was used to identify the petitioner in one of
the robberies. The petitioner challenged his convictions in two of the
robberies. In one of the robberies, the petitioner’s accomplice, S, had
given the police a statement that implicated the petitioner, but S did
not identify the petitioner’s photograph in an array of photographs that
he had been shown by the police. At trial, S gave a nonresponsive
reply to a question by the prosecutor and testified that the petitioner’s
photograph was the number two photograph in the array but that he
never picked it out because he did not want to. The petitioner’s counsel
did not object to or move to strike S’s response until the state later
presented testimony from a police detective that the petitioner’s photo-
graph was the second photograph in the array. The other robbery was
captured on videotape by the store’s surveillance camera. The police
showed the videotape to the petitioner’s probation officer, K. At trial,
when K testified that the petitioner was the individual on the videotape,
the court struck her testimony as inadmissible because it was an opinion
on the ultimate issue in the trial. The habeas court rendered judgment
denying the habeas petition, from which the petitioner, on the granting of
certification, appealed to this court. Held that the habeas court properly
denied the petition for a writ of habeas corpus, the petitioner having
failed to show that his trial counsel rendered ineffective assistance or
that he was prejudiced by any of counsel’s decisions at trial: trial coun-
sel’s reasonable strategic decision not to call an audio-video forensics
expert to testify did not fall below an objective standard of reasonable-
ness, as no witness prior to trial had identified or was expected to
identify the petitioner in the videotape, counsel made a strategic decision
to try to minimize the prominence of K’s stricken testimony by not
calling an expert to undermine it, and there was no evidence in the
record that identified the petitioner in the video; moreover, trial counsel
had a reasonable basis for not objecting to S’s nonresponsive testimony
in which S identified the petitioner, as counsel wanted the jury to hear
the part of S’s answer in which S stated that he did not identify the
petitioner in the photographic array, but did not want to draw the jury’s
attention to the unhelpful portion of S’s testimony, the testimony was
not harmful until the detective was asked to bolster S’s testimony that
the petitioner’s photograph was the second photograph in the array,
S’s credibility was thoroughly attacked, and additional evidence was
presented that identified the petitioner as the perpetrator of the robbery;
furthermore, the petitioner could not demonstrate that there was a
reasonable probability that the outcome of the trial would have been
different had his counsel presented testimony from the petitioner’s step-
father, which would have been cumulative of prior testimony by the
petitioner’s mother.
Argued January 22—officially released April 23, 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 deny-
ing the petition, from which the petitioner, on the grant-
ing 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).
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 Con-
necticut 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 tes-
timony 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 rele-
vant to this appeal. In his underlying criminal prosecu-
tion, the petitioner was accused in separate
informations of crimes arising from armed robberies at
convenience stores in Shelton, Woodbridge and Anso-
nia. 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 work-
ing 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 San-
tiago 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 investiga-
tion, 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 fright-
ened 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 video-
tape 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 per-
mutations 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 won-
dering 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 inves-
tigation, 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 rob-
bery. 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 rec-
ognized 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 video-
tape 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 limine to
preclude Kolich’s proffered testimony, ruling that (1)
the identification procedure was not unnecessarily sug-
gestive, and (2) Kolich’s testimony was only that the
person in the video looked similar to the petitioner,
and, thus, did not constitute a definitive identification
of the petitioner of the sort that was held to be inadmis-
sible under Finan.
At trial, however, Kolich went further in her testi-
mony about the person shown on the videotape, stating
that ‘‘there’s a very good possibility that it is [the peti-
tioner],’’ then adding that she would ‘‘bet money [that
it was the petitioner in the video], if [she] had to.’’
Upon defense counsel’s timely objection to this changed
testimony, the court ruled that Kolich’s identification
was inadmissible under Finan because it was an opin-
ion on the ultimate issue in the trial. On that basis, the
court ordered that her entire testimony be stricken in
relation to the Woodbridge robbery. Defense counsel
then moved for a mistrial, which was denied. When the
jury returned to the courtroom, the court explained to
the jury that it had granted the motion to strike the
probation officer’s testimony in its entirety and
instructed the jury that it was not to ‘‘use that [testi-
mony], at all, in [its] deliberations.’’ At the end of the
trial, Castignoli noted during the charge conference that
he had given it much thought and had decided to request
that the court not caution the jury again regarding Kol-
ich’s stricken testimony in its final charge.
In its case-in-chief, the state also presented the testi-
mony of Santiago. Santiago testified that the petitioner
had robbed the convenience store in Shelton while he,
Santiago, was asleep in the petitioner’s car. On Castig-
noli’s recross-examination, the following colloquy
occurred:
‘‘[Defense Counsel]: Mr. Santiago, on two separate
occasions, on one occasion when you told the police
that you were not in Shelton at all that night, on the
other occasion when you went through the photo
spread, you did not tell the police the truth. Correct?
‘‘[The Prosecutor]: Objection. Asked and answered;
outside the scope of the redirect.
‘‘[Defense Counsel]: It was brought up on redirect.
‘‘[The Court]: Overruled. You may answer the ques-
tion. Go right ahead.
‘‘[Santiago]: All right. I didn’t—I didn’t answer—I
didn’t— if, okay, if the police lineup, the picture, right,
he’s number two, if that’s what you want to know. He
was number two. I never picked it out because I didn’t
want to. It’s not like—’’ Castignoli did not move to strike
Santiago’s answer to his question at that time.
Following Santiago’s testimony, the state called
Trabka, who testified that the petitioner’s photograph
was indeed the second photograph in the array that he
had prepared and presented to Santiago. At that point
Castignoli objected, arguing that Trabka’s testimony
was irrelevant, more prejudicial than probative, and
hearsay. He also requested that Santiago’s previous non-
responsive testimony that the petitioner’s photograph
was number two in the array be stricken, arguing that
the state was now using Trabka’s testimony to bolster
Santiago’s nonresponsive answer concerning the peti-
tioner’s photograph. Counsel’s timely objections to
Trabka’s testimony and belated objection to Santiago’s
testimony were overruled.
In the petitioner’s case-in-chief, he presented the tes-
timony of his mother, Sue Riebling. She testified that
when she spoke to detectives investigating the Wood-
bridge robbery the day after it occurred, they informed
her that the perpetrator had held a knife to the neck
of the store clerk. Later that day, she spoke to the
petitioner on the telephone and relayed to him the infor-
mation about the robbery that she had received from
the detectives. Crowther’s interview with the petitioner,
in which he blurted out those very details about the
robbery, occurred approximately one week after the
petitioner’s conversation with his mother.
After concluding its deliberations, the jury found the
petitioner guilty of one count each of conspiracy to
commit robbery in the first degree in violation of Gen-
eral Statutes §§ 53a-48 (a) and 53a-134 (a) (4), larceny
in the second degree in violation of General Statutes
§ 53a-123, conspiracy to commit larceny in the second
degree in violation of §§ 53a-48 (a) and 53a-123, illegal
possession of a weapon in a motor vehicle in violation
of General Statutes § 29-38 (a), and larceny in the sixth
degree in violation of General Statutes § 53a-125b, and
of three counts of robbery in the first degree in violation
of § 53a-134. He was later sentenced to a total effective
term of fifteen years incarceration followed by five
years of special parole.1 The petitioner subsequently
appealed from his convictions, which were affirmed by
this court on June 5, 2012. See State v. Bree, supra, 136
Conn. App. 24.
The petitioner commenced this habeas corpus action
on April 12, 2013, challenging the effectiveness of trial
counsel in the underlying criminal prosecution.2 At the
habeas trial, the petitioner presented the testimony of
three witnesses: Robert Sanderson, an audio-video
forensics expert; Ronald Riebling, the petitioner’s step-
father; and Castignoli.
Sanderson testified that he had examined the closed-
circuit television surveillance video of the Woodbridge
robbery that had been shown to Kolich in order to
determine if she could identify the petitioner as one of
the perpetrators, and stated that it was his expert opin-
ion that the quality of the video was so poor that it was
unusable for the purpose of identifying the perpetrator
by his facial features or how he moved. Ronald Riebling
testified that he had had a private conversation with
Crowther regarding the Woodbridge robbery on the
same day as his wife, Sue Riebling, and that in that
conversation Crowther had likewise identified the
weapon used in the robbery and described the manner
in which it was used by the robber. Ronald Riebling
further testified that he, too, had been available and
willing to testify at the petitioner’s criminal trial about
his conversation with Crowther, and that he had so
informed Castignoli, but he was never asked to testify.
Castignoli testified that he did not consider calling
an audio-video expert in the petitioner’s trial to opine
about the quality of the surveillance video of the Wood-
bridge robbery because no witness had identified the
petitioner or was expected to identify the petitioner
from the video. He also noted that, after the court had
stricken the testimony of Kolich purporting to identify
the petitioner in that video, he wanted to minimize the
significance of her stricken testimony and not draw any
additional attention to it by calling an expert witness
to undermine an identification that was no longer in
evidence.
Castignoli further testified about his decision not to
object during the testimony of Santiago. He conceded
that he could have objected to Santiago’s testimony
at the time his nonresponsive answer was given, but
explained that he chose not to do so because he had
elicited information in that same answer that he wanted
to the jury to hear, to wit: that Santiago did not initially
identify the petitioner in the photographic array shown
to him by Trabka. Castignoli further explained that he
did not find Santiago’s nonresponsive answer to be
damaging until Trabka was called to bolster it by con-
firming that the petitioner’s photograph was, as Santi-
ago had stated, the second photograph in the array.
When asked whether he considered calling Ronald Rie-
bling to testify at the petitioner’s trial to confirm the
testimony of his wife about the conversation with
Crowther, he stated that he thought such testimony
would be cumulative and unnecessary.
In its memorandum of decision, the court denied
the petitioner’s petition for a writ of habeas corpus,
concluding that (1) it was a reasonable strategic deci-
sion for counsel not to call an audio-video expert to
opine as to the quality of the surveillance video when
no witness had been expected to identify the petitioner
in the video, and the petitioner was not prejudiced by
that decision because Kolich’s entire testimony, includ-
ing her identification of him in the surveillance video,
had been stricken; (2) it was a reasonable strategic
decision for counsel not to move to strike Santiago’s
testimony identifying the petitioner in the photographic
array in connection with the Woodbridge robbery, and
the petitioner was not prejudiced by that decision
because there was substantial additional evidence link-
ing the petitioner to that robbery, ensuring that the
outcome of the trial would not have been different had
the testimony been stricken; and (3) it was a reasonable
strategic decision for counsel not to call Ronald Rie-
bling as a witness in the defense’s case-in-chief because
his testimony would have been merely cumulative. On
September 25, 2017, the court granted the petitioner’s
petition for certification to appeal, and this appeal
followed.
We begin by setting forth our standard of review. ‘‘The
habeas court is afforded broad discretion in making its
factual findings, and those findings will not be disturbed
unless they are clearly erroneous. . . . The application
of the habeas court’s factual findings to the pertinent
legal standard, however, presents a mixed question of
law and fact, which is subject to plenary review.’’ (Inter-
nal quotation marks omitted.) Horn v. Commissioner
of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016).
The legal principles that govern an ineffective assis-
tance claim are well settled. See Strickland v. Washing-
ton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). ‘‘A claim of ineffective assistance of counsel
consists of two components: a performance prong and
a prejudice prong. To satisfy the performance prong
. . . the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . The
second prong is . . . satisfied if the petitioner can dem-
onstrate that there is a reasonable probability that, but
for that ineffectiveness, the outcome would have been
different.’’ (Citation omitted; internal quotation marks
omitted.) Horn v. Commissioner of Correction, supra,
321 Conn. 775–76.
Regarding the performance prong, ‘‘[j]udicial scrutiny
of counsel’s performance must be highly deferential.
. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. . . . [A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ (Internal quotation marks
omitted.) Spearman v. Commissioner of Correction,
164 Conn. App. 530, 539, 138 A.3d 378, cert. denied, 321
Conn. 923, 138 A.3d 284 (2016).
With these principles in mind, we turn to the petition-
er’s claims of ineffective assistance. The petitioner first
claims that the habeas court erred in finding that Castig-
noli did not render ineffective assistance by failing to
consult with or to present the testimony of an audio-
video forensics expert regarding the reliability of the
closed-circuit television surveillance video that was
used by the state for identification purposes in the
Woodbridge case. We disagree.
‘‘We are mindful that, under certain circumstances,
the failure to use [an] expert can result in a determina-
tion that a criminal defendant was denied the effective
assistance of counsel. . . . Nevertheless, the question
of whether to call an expert witness always is a strategic
decision. . . . [S]trategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; [but] strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Arroyo v. Commis-
sioner of Correction, 172 Conn. App. 442, 467, 160 A.3d
425, cert. denied, 326 Conn. 921, 169 A.3d 235 (2017).
We agree with the habeas court’s conclusion that
Castignoli made a reasonable strategic decision not to
call an expert to opine on the quality of the surveillance
video for identification purposes because prior to the
trial no witness had identified the petitioner or was
expected to identify the petitioner in the video. We also
note that the petitioner’s argument fails to consider that
the testimony that the expert would have been called
to undermine was stricken from the record. Castignoli
explained that he made a strategic decision to try to
minimize the prominence of Kolich’s testimony once
it was stricken by not requesting a second curative
instruction during the final jury charge and by not call-
ing an expert to opine on the quality of the video. We
cannot conclude that the decision not to call an expert
witness under these circumstances falls below an objec-
tive standard of reasonableness. Even if the petitioner
met his burden with respect to the performance prong
of Strickland, he failed to demonstrate that there is a
reasonable probability that, but for counsel’s alleged
ineffectiveness, the outcome of his trial would have
been different.
In this regard, the petitioner argues that Castignoli
understood the significance of the testimony at issue
because he moved to preclude it in his motion in limine,
and thus his failure to present the testimony of an audio-
video forensics expert left him without a key witness
and a viable defense. This argument from the petitioner
again fails to consider that the audio-video forensics
expert would have been presented to undermine an
identification that was ultimately stricken from the
record. With no evidence in the record identifying the
petitioner in the video, we cannot say that the outcome
of the trial would have been different if an expert had
been called to discuss the poor quality of that video.
For the foregoing reasons, we agree with the court
that Castignoli did not render ineffective assistance by
failing to call an expert in audio-video forensics.
The petitioner next contends that the court erred in
finding that Castignoli did not render ineffective assis-
tance by failing to timely object to and move to strike
the nonresponsive testimony of Santiago identifying the
petitioner during recross-examination. We disagree.
‘‘[T]he decision of a trial lawyer not to make an objec-
tion is a matter of trial tactics, not evidence of incompe-
tency. . . . [T]here is a strong presumption that the
trial strategy employed by a criminal defendant’s coun-
sel is reasonable and is a result of the exercise of profes-
sional judgment . . . .’’ (Citation omitted; internal
quotation marks omitted.) Toccaline v. Commissioner
of Correction, 80 Conn. App. 792, 801, 837 A.2d 849,
cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied
sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct.
301, 160 L. Ed. 2d 90 (2004).
At the habeas trial, Castignoli gave several cogent
reasons why he chose not to object to the nonrespon-
sive testimony of Santiago, including that he wanted
the jury to hear part of that same nonresponsive answer,
that he did not want to draw the jury’s attention to the
unhelpful portion of the testimony by objecting to it,
and that he did not find the testimony to be harmful
until Trabka was asked to bolster it. Because Castignoli
articulated a reasonable basis for his decision not to
object and, as noted by the habeas court, ‘‘[i]n light of
the requirement to indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance,’’ we agree with the habeas
court that ‘‘Castignoli’s performance was not constitu-
tionally deficient.’’
Moreover, the petitioner failed to demonstrate that
he was prejudiced by counsel’s failure to object to Santi-
ago’s nonresponsive testimony in light of the entirety
of his testimony. On cross-examination, Castignoli
attacked Santiago’s credibility by inquiring in great
detail about his significant criminal history, his drug
use, his involvement in and pending case in connection
with the robbery at issue, and his inconsistent state-
ments to the police regarding that robbery. Additional
evidence was also presented as to the identity of the
petitioner as a perpetrator in the Shelton case: specifi-
cally, that the petitioner owned a sky blue Infiniti, which
matched the description of the vehicle that was seen
leaving the store after the robbery was committed, and
that he knew details about the robbery that the detec-
tives had not shared with him. Because Santiago’s credi-
bility was thoroughly attacked and additional evidence
was presented that identified the petitioner as the per-
petrator of the Shelton robbery, we agree with the court
that the petitioner failed to establish that the outcome
of his trial would have been different had Castignoli
timely objected to Santiago’s nonresponsive testimony
identifying the petitioner.
Finally, the petitioner argues that the court erred in
finding that Castignoli was not ineffective for failing to
present the testimony of Ronald Riebling. We disagree.
‘‘The failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ State v. Talton, 197 Conn. 280, 297, 497 A.2d
35 (1985). Where the evidence at issue is merely cumula-
tive, this court has found that the petitioner cannot
demonstrate that there is a reasonable probability that,
but for the failure to present such evidence, the out-
come of the trial would have been different. See, e.g.,
Hall v. Commissioner of Correction, 152 Conn. App.
601, 610, 99 A.3d 1200, cert. denied, 314 Conn. 950, 103
A.3d 979 (2014).
As conceded at trial by Ronald Riebling, his testimony
would have included the same facts and circumstances
that were testified to at the petitioner’s trial by Sue
Riebling, and he would not have provided any new or
additional information to the jury. We thus agree with
the habeas court’s finding that such testimony would
have been cumulative. Castignoli’s decision not to pre-
sent such testimony, therefore, did not constitute defi-
cient performance or prejudice the petitioner.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner was sentenced in the Shelton case to fifteen years of
incarceration followed by five years of special parole. In the Ansonia case,
which is not at issue in this appeal, he was sentenced to a concurrent term
of five years of incarceration. In the Woodbridge case, he was sentenced
to a concurrent term of fifteen years of incarceration followed by five years
of special parole.
2
A trial was first held on the petitioner’s claims on September 8, 2016,
which ended in a mistrial due to a conflict of interest with the petitioner’s
first counsel’s firm.