189 Conn. App. 411
Conn. App. Ct.2019Background
- Jason Bree was convicted of armed robberies in Shelton, Woodbridge and Ansonia; this habeas appeal challenges counsel’s effectiveness for conduct at the underlying trial involving the Shelton and Woodbridge robberies.
- Woodbridge robbery: store surveillance video existed; probation officer Tricia Kolich viewed the tape and initially testified at trial that the person looked like Bree; the trial court later struck her definitive identification as an impermissible lay opinion under State v. Finan.
- Shelton robbery: accomplice Gabriel Santiago gave a post-arrest statement implicating Bree but initially failed to pick Bree from a photographic array; at trial Santiago gave a nonresponsive answer indicating Bree was photograph number two but said he didn’t pick it out; later a detective testified Bree’s photo was number two.
- Defense counsel did not call an audio‑video forensics expert to challenge the surveillance video, did not immediately move to strike Santiago’s nonresponsive testimony, and did not call Bree’s stepfather (who would have corroborated defense testimony) at trial.
- On habeas, petitioner presented an audio‑video expert (opining the Woodbridge video was unusable for ID), the stepfather, and trial counsel (who explained tactical reasons for the trial decisions). The habeas court denied relief; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not calling an audio‑video forensics expert to challenge surveillance video ID | Bree: counsel should have consulted/called an expert to undermine Kolich’s identification and the video’s reliability | State: counsel reasonably declined because no witness had reliably identified Bree from the video and Kolich’s identification was ultimately stricken; calling an expert risked emphasizing the issue | Counsel’s strategic choice was reasonable; no prejudice shown because Kolich’s ID was struck and no other in‑record ID from the video existed |
| Whether counsel was ineffective for failing to timely object to/move to strike Santiago’s nonresponsive identification testimony | Bree: counsel should have struck the nonresponsive testimony where Santiago implicated Bree as photo #2 | State: counsel reasonably refrained to preserve favorable portions (that Santiago hadn’t initially picked Bree) and to avoid highlighting the damaging fragment; Santiago’s credibility was thoroughly attacked and other evidence linked Bree | Counsel’s tactical decision was reasonable; petitioner failed to prove prejudice |
| Whether counsel was ineffective for not calling the petitioner’s stepfather to corroborate alibi/exculpatory testimony | Bree: the stepfather would have corroborated exculpatory details and aided defense | State: stepfather’s testimony would have been cumulative of the petitioner’s mother’s testimony and was unnecessary | Failure to call stepfather was not deficient; testimony would be cumulative so no prejudice |
| Standard of review and burden for ineffective assistance | Bree: errors of counsel warrant habeas relief | State: Strickland standard applies; petitioner must prove deficient performance and reasonable probability of different outcome | Strickland governs; petitioner failed both prongs as applied to each claim |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance: performance and prejudice)
- State v. Finan, 275 Conn. 60 (2005) (lay opinion that defendant is shown on surveillance videotape may be inadmissible as an opinion on the ultimate issue)
- Horn v. Commissioner of Correction, 321 Conn. 767 (2016) (standard of review for habeas factual findings and mixed questions)
- Arroyo v. Commissioner of Correction, 172 Conn. App. 442 (2017) (calling expert witnesses is a strategic choice; adequacy of investigation matters)