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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 photograph 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 counsel’s reasonable strategic decision not to call an audio-video forensics

expert to testify did not fall below an objective standard of reasonableness, 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 stepfather, 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 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).
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 limine to

preclude Kolich’s proffered testimony, ruling that (1)

the identification procedure was not unnecessarily suggestive, 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 inadmissible under Finan.

At trial, however, Kolich went further in her testimony about the person shown on the videotape, stating

that ‘‘there’s a very good possibility that it is [the petitioner],’’ 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 opinion 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 [testimony], 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 Kolich’s stricken testimony in its final charge.

In its case-in-chief, the state also presented the testimony 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 Castignoli’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 question. 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 nonresponsive 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 petitioner’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 testimony of his mother, Sue Riebling. She testified that

when she spoke to detectives investigating the Woodbridge 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 information 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 General 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 stepfather; and Castignoli.

Sanderson testified that he had examined the closedcircuit 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 opinion 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 Woodbridge 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 confirming that the petitioner’s photograph was, as Santiago had stated, the second photograph in the array.

When asked whether he considered calling Ronald Riebling 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 decision 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, including 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 linking 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 Riebling 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.’’ (Internal quotation marks omitted.) Horn v. Commissioner

of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016).

The legal principles that govern an ineffective assistance claim are well settled. See Strickland v. Washington, 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 demonstrate 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 distorting effects of hindsight, to reconstruct the circumstances 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 [petitioner] must overcome the presumption that, under the

circumstances, the challenged action might be considered 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 petitioner’s claims of ineffective assistance. The petitioner first

claims that the habeas court erred in finding that Castignoli did not render ineffective assistance by failing to

consult with or to present the testimony of an audiovideo 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 determination 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. Commissioner 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 calling 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 objective 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 audiovideo 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 assistance 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 objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the
trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional 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 nonresponsive 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 reasonable professional assistance,’’ we agree with the habeas

court that ‘‘Castignoli’s performance was not constitutionally deficient.’’

Moreover, the petitioner failed to demonstrate that

he was prejudiced by counsel’s failure to object to Santiago’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 statements 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: specifically, 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 detectives had not shared with him. Because Santiago’s credibility was thoroughly attacked and additional evidence

was presented that identified the petitioner as the perpetrator 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 assistance 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 outcome 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 present such testimony, therefore, did not constitute deficient 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.