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Turner v. Commissioner of Correction
TYQUAN TURNER v. COMMISSIONER
OF CORRECTION
(SC 21222)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Dannehy and Bright, Js.
Syllabus
The petitioner, who previously had been convicted of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree, sought a writ of habeas corpus, claiming, inter alia, that his trial counsel, H, had provided ineffective assistance by failing to challenge certain cell site location information (CSLI) evidence admitted at the petitioner’s criminal trial. The petitioner’s conviction stemmed from an incident in the city of Hartford during which the victim was robbed of his jewelry and shot. At the criminal trial, the state presented, among other evidence, the testimony of two eyewitnesses and W, a member of the Hartford Police Department. W testified about cell site technology generally and about specific cell phone data, including CSLI, that the police had obtained from the petitioner’s cell phone carrier. W explained that he had entered the CSLI into a computer program that produced a time-lapse video purporting to depict the movement of the petitioner’s cell phone on the day of the shooting, and the video was admitted into evidence without objection. The video depicted the petitioner’s cell phone, represented by a human silhouette superimposed on a map of Hartford, moving in straight lines between relevant locations, including the crime scene and a pawn shop where the victim’s jewelry had been sold shortly after the murder. W conceded on direct examination that the video and the underlying data could establish only that the cell phone was in an area associated with a particular cell site but that the data could not be used to establish that a person was in a particular location or that the cell phone was at any specific address. The state ultimately relied heavily on the CSLI evidence during closing and rebuttal arguments. At the petitioner’s habeas trial, H testified that his trial strategy was to downplay the significance of the CSLI evidence and to focus on weaknesses in the eyewitness identifications. H also testified that he had opted not to challenge W during cross-examination but instead intended to use W’s testimony to the petitioner’s advantage during closing argument. The habeas court granted in part the habeas petition and ordered a new criminal trial, concluding that H had ultimately performed deficiently and that the petitioner had been prejudiced by H’s deficient performance. On the granting of certification, the respondent, the Commissioner of Correction, appealed from the habeas court’s judgment. Held:
The habeas court correctly determined that H had performed deficiently and that the petitioner had been prejudiced thereby, and, accordingly, this court affirmed the habeas court’s judgment.
The respondent could not prevail on his claim that the habeas court’s decision was based soley on H’s failure to investigate the CSLI evidence and to crossexamine W, and the record established that the petitioner distinctly raised the claim that H had rendered ineffective assistance by failing to challenge the admissibility of the time-lapse video.
Turner v. Commissioner of Correction
In construing the habeas court’s decision, this court concluded that the habeas court had determined that reasonably competent counsel would have challenged the admissibility of the time-lapse video, that, because the video misrepresented the capabilities of CSLI, it would have been excluded from evidence if H had challenged its admission, and that H had performed deficiently specifically by failing to challenge or respond to the video. Although the respondent claimed that the habeas court’s finding that H had failed to investigate the CSLI evidence was not supported by the evidence, the habeas court’s determination that H had performed deficiently did not depend on the extent of H’s investigation into the CSLI evidence, as it was H’s failure to challenge or respond to that evidence in any way that served as the basis for the habeas court’s finding of deficient performance. Moreover, although H’s stated strategy of focusing on undermining the eyewitness identifications and to downplay the significance of the CSLI evidence rather than directly challenging W’s testimony on cross-examination was not objectively unreasonable, H had failed to execute any such strategy at the petitioner’s criminal trial, thereby allowing the state’s strongest evidence to appear virtually unassailable.
Accordingly, H’s failure to present any meaningful defense to the CSLI evidence, and, more specifically, the time-lapse video, was outside of the range of professionally competent assistance, and thus fell below the objective standard of reasonableness.
This court concluded, upon its independent review of the record, that the habeas court had properly assessed the impact of H’s deficient performance on the outcome of the petitioner’s criminal trial.
The state’s case against the petitioner was not overwhelming and relied primarily on the CSLI evidence, including the time-lapse video, to connect the petitioner to the victim’s murder, the prosecutor acknowledged that the CSLI evidence was the state’s strongest evidence and relied extensively on the video in his closing and rebuttal arguments, and the identifications made by the two eyewitnesses were weak and had been effectively undermined by H. Accordingly, there was a reasonable probability that the result of the petitioner’s criminal trial would have been different if H had attempted to undermine the CSLI evidence, including the time-lapse video. Contrary to the respondent’s arguments, the petitioner’s failure to call W to testify and to present new CSLI evidence at his habeas trial did not preclude a finding of prejudice under the circumstances of this case.
Argued April 15—officially released August 11, 2026
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, Bhatt, J.; judgment granting in
Turner v. Commissioner of Correction
part the petition, from which the respondent, on the
granting of certification, appealed. Affirmed.
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, Jo Anne Sulik, senior assistant state’s attorney, and Gail P. Hardy, former state’s attorney, for the
appellant (respondent).
Vishal K. Garg, assigned counsel, for the appellee
(petitioner).
Robert J. Meredith and Desmond M. Ryan filed a brief
for the Innocence Project, Inc., et al. as amici curiae.
Opinion
BRIGHT, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting in part the amended petition for a writ
of habeas corpus filed by the petitioner, Tyquan Turner.1
The habeas court concluded that the petitioner’s criminal trial counsel, Attorney Walter D. Hussey, rendered
ineffective assistance by failing to challenge the state’s
historical cell site location information (CSLI) evidence
and that the petitioner was prejudiced as a result. On
appeal, the respondent claims that the petitioner failed
to establish both that Hussey had performed deficiently
and that the petitioner was prejudiced by the allegedly
deficient performance. We affirm the judgment of the
habeas court.
The following background regarding the petitioner’s
underlying criminal conviction is relevant to the respondent’s appeal. See State v. Turner, 334 Conn. 660, 224
A.3d 129 (2020); State v. Turner, 181 Conn. App. 535,
187 A.3d 454 (2018), aff’d, 334 Conn. 660, 224 A.3d
129 (2020). Shortly before 4 p.m. on July 13, 2013,
the victim, Miguel Rodriguez, was fatally shot by two
1
Upon the granting of his petition for certification to appeal from the judgment of the habeas court, the respondent appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Turner v. Commissioner of Correction
assailants while he was standing outside of 10-12 Flatbush Avenue in Hartford. State v. Turner, supra, 181
Conn. App. 539. Although two eyewitnesses, Charlene
Lara and Jose DeJesus, gave statements to the police, the
victim’s family and friends refused to cooperate beyond
reporting that his gold chain and medallion were missing.
Id. Shortly after the shooting, Lorenzo Christian sold
those items to a pawn shop located at 1154 Albany Avenue in Hartford, and he received a check in the amount
of $1134. Id., 540, 548. Christian was unable to cash
the check, so the petitioner called Alexandra Colon, the
mother of his child, who agreed to cash it for Christian.
Id. The petitioner and Christian picked up Colon from her
house and drove to a bank on Park Street in Hartford,
where Colon deposited the check in her account. Id., 548.
After the check had cleared, Colon gave the proceeds to
the petitioner. Id.
The day after the homicide, the police received a phone
call from an unidentified person who implicated the
petitioner in the shooting and provided the police with
a photograph of the petitioner that had been circulated
in the victim’s neighborhood. See id., 540. A few weeks
later, when officers attempted to apprehend him in Hartford, the petitioner avoided capture but dropped his
cell phone in the process, which was then seized by the
police. Id., 540–41. Colon later identified the phone as
the petitioner’s and gave the police the petitioner’s cell
phone number, which allowed the police to obtain call
detail records, including CSLI, and account subscription
information from the petitioner’s cell phone carrier,
formerly Sprint Corporation (Sprint). Id., 541. Those
records revealed that the cell phone number had been
changed on July 14, 2013, the day after the homicide. Id.
Sergeant Andrew Weaver of the Hartford Police
Department analyzed the call detail records and entered
the CSLI into a computer program, Oculus GeoTime,
which produced a time-lapse video purporting to depict
the movement of the petitioner’s cell phone—represented
by a purple, human silhouette—on a map of the city of
Turner v. Commissioner of Correction
Hartford during the time of the homicide (GeoTime
video). See id., 541–42; see also id., 542–43 n.6. “Weaver
also took screenshots of the video at different times
between approximately 3:24 and 5:08 p.m. on the day
of the crime.” Id., 542–43. The petitioner was arrested
and charged with murder, felony murder, robbery in the
first degree, and conspiracy to commit robbery in the
first degree. Id., 543.
At trial, the state called several witnesses, including
DeJesus, Lara, Colon, and members of the Hartford
Police Department who were involved in the investigation. See id. The state introduced the cell phone records
through Ray Clark, a records custodian at Sprint, and
the trial court admitted those documents into evidence
without objection. State v. Turner, supra, 334 Conn.
664; see also State v. Turner, supra, 181 Conn. App.
543–44. “On cross-examination, Clark testified that the
call detail records allow a person to determine where a
call was generated and where it ended in relationship
to a particular cell site. Clark clarified, however, that
‘you can’t pinpoint and say [the phone] has to have been
exactly here. This record simply says it had to have been
in the vicinity of this particular cell site at the time the phone call began and, likewise, at the time the phone
call ends.’ Clark explained that a cell phone is within
the vicinity of a particular cell site when it is within the range of that cell site, the range being approximately
two miles in larger cities like Hartford.
“Weaver was called to testify next. The state did not
disclose Weaver as an expert witness, although the trial
court instructed the jury that he provided expert testimony.” State v. Turner, supra, 334 Conn. 664–65.
Weaver testified that each cell site typically has three
antennae, each of which provides coverage for a different
120 degree sector of the cell site’s circular coverage area, and he estimated that the average coverage area in Hartford would extend approximately one and one-half miles
from the cell site. Id., 665–66. He noted that, although
cell sites are designed to limit overlapping coverage areas
Turner v. Commissioner of Correction
to reduce interference and dropped calls, some overlap
remains to allow for “ ‘seamless transmission’ ” from
one cell site to the next. Id., 666. Weaver explained that
a cell phone generally connects to the cell site with the
strongest signal, which is often—but not always—the
closest one. Id. For example, a more distant cell site may
emit the stronger signal if there are obstructions between
the closest cell site and the phone. Id.
Weaver testified that Sprint’s call detail records identify the sector of the cell site through which a call is
routed and the coordinates of the cell site. Id., 665. He
explained that he inputted that information into Oculus
GeoTime, which created the GeoTime video depicting “a
map that visually represents the calls over time.”2 Id.,
665–66. Consistent with Clark’s testimony, “Weaver
clarified that the cell phone data and subsequent map
show only that ‘the phone itself was in a certain area’
but do not establish that a certain person was in a certain
area or provide a specific address at which the phone was
located.” Id., 666.
Despite those well established limitations, the GeoTime
video showed a human figure imposed on an underlying
map of Hartford and moving in straight lines from the
center of one orange, pie shaped coverage area to the next.
The GeoTime video and the corresponding screenshots
were admitted into evidence without objection. See id.,
673. “Weaver explained that ‘[w]hat we do, once we have
the [cell sites] associated on the map, the program, we
add in the data that [come] from the cell phone company
about the calls that were made. So, we know at . . . 3:24
in the afternoon, that . . . the cell phone [at issue] made
a call, and it was routed through that pie shaped area.
What we do is, the next call is routed through another
[sector], or it can be the same [sector], in which case,
you wouldn’t show movement [on the map]. . . . [T]he
movement is actually just [showing] where the cell phone
2
Weaver testified that the GeoTime program “will move you over time based on when your calls start and end. It will move you over time across the map to the next tower.”
Turner v. Commissioner of Correction
goes over time. So, we move it from the center of one
coverage area to the center of the next coverage area. I
can’t tell you which streets were driven down. The—the
only thing we can be 100 percent sure of is, the phone
calls were made and that at some point the cell phone
traveled between—from one coverage area to the next
coverage area.’
“The [GeoTime video] showed that, at 3:25 p.m. on the
day of the shooting, the cell phone that the [petitioner]
dropped was in a particular cell coverage area, in which
was 1154 Albany Avenue, the address for the pawn shop
where the victim’s gold chain and medallion were sold.
At 3:53 p.m., near the time of the murder, the cell phone
was located within another coverage area, near 18 Flatbush Avenue, the location of the crime scene. Although
the crime scene was located just outside of the [depicted]
coverage area of the [cell site] that routed the 3:53 p.m.
call, as explained, Weaver testified that a cell phone may
[connect to a more distant cell site with a] better signal.
Then, at approximately 4:17 p.m., the maps showed
the cell phone again within the cell coverage area that
included the location of the pawn shop.” Id., 666–67.
During summation, the prosecutor focused extensively on the CSLI evidence, arguing that “the strongest piece of evidence is the phone” and referring to the
GeoTime video as “a virtual map as to what happened.”
The prosecutor narrated the GeoTime video for the jury,
suggesting that the movement of the depicted human
figure tracked the petitioner’s movements as he visited
all of the incriminating locations on the day of the crime,
including Christian’s residence, the crime scene, the
pawn shop, Colon’s residence, and his own residence.3
3
The prosecutor stated that the GeoTime video showed that “the person holding this phone leaves” the petitioner’s residence at 3:06 p.m., travels toward Albany Avenue, and, by 3:25 p.m., “he’s moving from that area” where Christian lived. “The [petitioner] and his phone are on top of the shooting scene,” then the petitioner’s “phone stays” near the pawn shop before “the [petitioner], with his phone, moves about the city of Hartford.” The prosecutor described the petitioner’s stopping near Colon’s residence so that she could cash Christian’s check and argued
Turner v. Commissioner of Correction
The prosecutor concluded his summation by stating that
the petitioner himself recognized “the extreme value of
the phone records” because he changed his phone number
the day after the crime.
Hussey countered that the state had relied on the CSLI
evidence because the eyewitness identifications had been
weak. The majority of Hussey’s closing argument focused
on the flaws in the testimony of Lara and DeJesus, and
the deficiencies in the investigation by the Hartford
Police Department. As to the cell phone, Hussey primarily argued that the state had failed to prove that
the phone belonged to the petitioner and suggested that
the phone likely belonged to Christian: “They talk about
the movement of the phone, but they don’t tell you who
has the phone. . . . Who could have had that phone? . . .
Christian? Yeah.”4 Hussey briefly touched on the CSLI
evidence, arguing: “Weaver said . . . I can’t tell you
which way they were driving. I can’t tell you who had
the phone. I can’t even tell you really where it was. I can
tell you where they weren’t. Well, it looks like they’re
back and forth. And if—if it really was his phone and he
had the phone, he doesn’t go anywhere.” Hussey offered
no other direct commentary on the CSLI evidence and
concluded by arguing that “all this other [evidence is a]
smoke screen [and] doesn’t have any significance, because
[the petitioner] has to be identified beyond a reasonable
doubt as [the person] pulling that trigger and robbing
that chain. It hasn’t been done.”
In rebuttal, the prosecutor reiterated his narration of
the GeoTime video and argued that there was no question that the petitioner was guilty of felony murder,
despite any reasonable doubt as to whether he was the
shooter. The prosecutor concluded by focusing on the
that “the person holding this phone at the end of the evening on July 13 ultimately will come to stay” at the petitioner’s residence.
4
Hussey argued that “[Christian is] the guy who, within an hour or two of the crime, is what? Pawning that chain, right? He lives right by [the pawn shop]. . . . Who’s to say [Christian] didn’t call [the petitioner] and say, I got a chain. I got a check that I just pawned. Can your girl cash a check for me?”
Turner v. Commissioner of Correction
CSLI evidence and Colon’s testimony, noting that the
“phone and its records loop around . . . every point of
interest related to the crime,” and that the petitioner
asked Colon to cash a check for Christian shortly after
the victim was killed.
The jury found the petitioner guilty of felony murder,
first degree robbery, and conspiracy to commit first
degree robbery, but not guilty of murder. State v. Turner,
supra, 334 Conn. 667–68. The trial court sentenced the
petitioner to seventy years of incarceration, and the
petitioner appealed from the judgment of conviction.
Id., 668. While the petitioner’s appeal was pending in
the Appellate Court,5 we issued our decision in State v.
Edwards, 325 Conn. 97, 129–33, 156 A.3d 506 (2017),
in which we held that expert testimony regarding CSLI
evidence is the type of scientific evidence that warrants
a Porter hearing6 to determine whether it is based on
reliable scientific methodology.
Before the Appellate Court, the petitioner claimed,
inter alia, that the trial court’s qualification of Weaver
as an expert witness and its admission of CSLI coverage
maps violated his due process right to a fair trial because
that scientific evidence “does not satisfy the reliability
safeguards [then] required by [Edwards].”7 (Internal
5
The petitioner appealed directly to this court pursuant to General Statutes § 51-199 (b) (3), and we transferred his direct appeal to the Appellate Court pursuant to § 51-199 (c) and Practice Book § 65-1. See State v. Turner, supra, 181 Conn. App. 544 n.10.
6
In State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), “we followed the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that testimony based on scientific evidence should be subjected to a flexible test to determine the reliability of methods used to reach a particular conclusion. . . . A Porter analysis involves a two part inquiry that assesses the reliability and relevance of the witness’ methods.” (Internal quotation marks omitted.) State v. Turner, supra, 334 Conn. 669.
7
The petitioner also claimed that there was insufficient evidence to convict him of conspiracy to commit robbery in the first degree, prosecutorial impropriety deprived him of his right to a fair trial, and the trial court improperly instructed the jury regarding robbery in the first
Turner v. Commissioner of Correction
quotation marks omitted.) State v. Turner, supra, 181
Conn. App. 549. Because Hussey neither objected to
Weaver’s testimony nor requested a Porter hearing
to challenge the state’s CSLI evidence, the petitioner
sought review of his unpreserved claim under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015), and the plain error doctrine. State v.
Turner, supra, 181 Conn. App. 549. The Appellate Court
affirmed the judgment of conviction; id., 571; concluding that the petitioner’s unpreserved evidentiary claim
was unreviewable under Golding; id., 551; and that the
petitioner could not prevail under the plain error doctrine
because “[Hussey] made a strategic decision not to object
to the [CSLI] evidence or Weaver’s qualification . . . .”8
Id., 552. We granted certification to appeal;9 State v.
Turner, 330 Conn. 909, 193 A.3d 48 (2018); and affirmed
the judgment of the Appellate Court. State v. Turner,
supra, 334 Conn. 687.
The petitioner filed the underlying habeas petition
while his direct appeal was pending, and he filed the
operative amended petition in October 2023, shortly
before the second day of the habeas trial. In the operative
petition, the petitioner alleged, inter alia, that Hussey
performed deficiently by failing (1) to request a Porter
hearing or “to otherwise challenge the introduction of
expert testimony regarding call detail mapping analysis
and [the] admission of cell phone coverage maps,” (2)
degree. State v. Turner, supra, 181 Conn. App. 538. The Appellate Court rejected those claims. Id., 538–39.
8
The Appellate Court declined to exercise its supervisory authority to review the petitioner’s unpreserved claim. State v. Turner, supra, 181 Conn. App. 555 n.17.
9
We granted the petitioner’s petition for certification to appeal, limited to the following issues: (1) “Did the Appellate Court properly determine that the petitioner was not entitled to review, under State v. Golding, [supra, 213 Conn. 233], of his unpreserved claim that the trial court [had] improperly admitted cell tower coverage maps?” And (2) “[d]id the Appellate Court properly determine that the petitioner was not entitled to plain error review of his unpreserved claim that the trial court [had] improperly admitted cell tower coverage maps?” State v. Turner, 330 Conn. 909, 193 A.3d 48 (2018).
Turner v. Commissioner of Correction
to “prepare and . . . present the petitioner’s defense by
. . . investigating legal, scientific, and factual issues
related to call detail mapping analysis, cell phone coverage maps, and [CSLI] evidence generally,” and (3) to
“cross-examine, impeach, or otherwise challenge the
testimony of” Clark and Weaver.10
At the habeas trial, copies of materials from the petitioner’s criminal trial and subsequent appeals were
admitted into evidence, including the trial transcripts,
court file, CSLI exhibits, and appellate briefs and appendices. The petitioner called several witnesses, including
Hussey, Joseph John Kennedy, who testified as an expert
in digital communications and cellular analysis, and
Attorney Aaron J. Romano, who testified as a criminal
defense expert.
Hussey testified that he focused his efforts on the
state’s two eyewitnesses who had identified the petitioner
as one of the assailants. Hussey did not recall doing any
specific research regarding Weaver’s testimony or the
CSLI evidence in the petitioner’s case, but he did research
the topic for a different case in which he was involved in
Bridgeport. Hussey testified: “[T]he reason why I know
[about CSLI] is because I had to read things, and my issue
is [that] I’m not sure if this case [preceded] or [if] it was [at] the same time as that case in Bridgeport. . . . But
it seems to me [that] it was [at] about the same time.”
He was aware that Weaver likely would testify about
the CSLI at trial but did not become aware of the visual
aids until “late in the game, closer to the point of trial.” Hussey, however, had no recollection of investigating the
10
The petitioner also claimed that (1) the state had violated his due process right to a fair trial by failing to disclose exculpatory materials in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (2) his due process right to a fair trial was violated by the introduction of unreliable and misleading call detail mapping analysis and by the state’s failure to correct false or substantially misleading testimony, and (3) his appellate counsel rendered ineffective assistance. In his posttrial brief, the petitioner abandoned his claim of ineffective assistance of appellate counsel, and the habeas court rejected the petitioner’s due process claims. The petitioner has not cross appealed to challenge the habeas court’s judgment on those counts.
Turner v. Commissioner of Correction
substance of Weaver’s expected testimony, and he recognized “certain flaws” in Weaver’s testimony. He noted
that Weaver’s testimony suggested that the petitioner
was in a specific location, which “you really can’t do”
with the call detail records. When asked why he decided
not to cross-examine Weaver, Hussey responded that “I
didn’t want to [go] toe-to-toe with him because he had
the advantage. So, I figured I would just use what he said
to my advantage in my closing.”
Regarding the GeoTime video in particular, Hussey
testified that he saw no basis for challenging the video’s
depiction of the cell sites and coverage areas because
that information is “real and demonstrative,” but he
recognized that he could have objected to the depiction
of a human figure moving around the map because it was
“more prejudicial than probative.” Hussey explained
that he was not “completely concerned with” the video
because Weaver “had to acknowledge that you’re at least”
one and one-half miles away from the cell site, which
made the video appear to be “a reach” by the state to
compensate for the lack of any direct evidence. Hussey
admitted, however, that he “was wrong in [his] assessment of the damage that was done, but [he] thought it
could be explained away as more or less a reach. And, if
you’re two miles away, you’re two miles away.” Hussey
assumed that “the distance obviously [would have
been] the focal point” of his summation because “Weaver
said that he couldn’t say who had the phone in their
hands, [and] he couldn’t say what street they were on.
He really couldn’t say anything . . . with any degree
of certainty . . . .”
On cross-examination, Hussey testified that, generally, he would forgo cross-examination if he thought
that (1) the witness did not “hurt our case,” or (2) crossexamination would “make us look worse” because Hussey
“didn’t have a lot to work with . . . .” When asked about
his strategy of forgoing cross-examination and using
Weaver’s testimony to his advantage in closing, Hussey
explained that he viewed “the cell phone [as] an attempt
Turner v. Commissioner of Correction
to backdoor a conviction, and [he] didn’t think it was
going to work. . . . [T]o [Hussey], it looked . . . more desperate than what it turned out to be, which, obviously,
was damning.”
Romano testified that reasonably competent counsel
would have (1) requested a Porter hearing to challenge
call detail mapping in general, (2) filed a motion in limine to exclude the GeoTime video on the ground that its
depiction of a human figure moving in linear paths to and
from specific places on the map was likely “to mislead the
jury,” (3) cross‑examined the state’s expert to challenge
the accuracy of the GeoTime video, and (4) presented
testimony from a defense expert. Romano opined that,
at the time of the petitioner’s criminal trial, reasonably
competent counsel with a basic understanding of CSLI
and its limits “would be able to know that [the GeoTime]
video . . . is misleading” because “it purports to demonstrate that there’s movement” when the underlying data
do not establish “that, indeed, there is movement.” He
further opined that, absent an objection to the admissibility of the GeoTime video, reasonably competent
counsel would have challenged the accuracy of the video
through cross-examination. Romano also testified that
he was unable to envision any circumstances in which
reasonably competent counsel would allow CSLI evidence
to be admitted at trial without challenging it.
Kennedy, who had reviewed the materials of the petitioner’s criminal trial, testified regarding the limitations of CSLI, including that CSLI cannot pinpoint an exact
location and that switching cell sites does not necessarily
indicate movement. Kennedy testified that, on the basis
of the call detail records in the petitioner’s case, only the coverage areas for the cell sites through which calls were
routed could be determined, and attempting to specify
the phone’s location within a particular coverage area
“would just be speculation, just a random guess.”
In his posttrial brief, the petitioner argued that Hussey
performed deficiently by “failing to adequately prepare and present the petitioner’s defense to the state’s
Turner v. Commissioner of Correction
[CSLI] evidence” and that Hussey failed to “raise available challenges to the admissibility and scope of such
evidence.” The respondent countered that the petitioner
had failed to prove his ineffective assistance claims based
on Hussey’s “[failure] to raise novel claims pertaining
to the admission of [CSLI] evidence” or to demonstrate
prejudice attributable to that deficient performance
because “whether the trial court would have granted a
motion for a Porter hearing in the pre-Edwards environment in which the petitioner’s [criminal] case was
tried is entirely speculative.” In his reply, the petitioner argued that the respondent had failed to “address the
petitioner’s claim that Hussey was ineffective because he
did not request the removal of the depiction of a person
moving around the city from the [GeoTime video] that
accompanied Weaver’s testimony. Hussey [offered no]
strategic basis for his failure, and the prejudicial nature
of the completely misleading visual representation speaks
for itself.”
The habeas court subsequently issued its memorandum
of decision and granted in part the petition.11 The court
applied the two-pronged test for ineffective assistance of
counsel claims set forth in Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
which requires a petitioner to demonstrate both that
(1) counsel performed deficiently (performance prong),
and (2) counsel’s deficient performance prejudiced the
petitioner (prejudice prong). The court concluded that
Hussey performed deficiently by failing “to challenge
the admissibility of [CSLI] testimony, including [the
GeoTime video] purporting to show the [petitioner’s]
path of travel, from . . . Weaver and that this failure
prejudiced [the petitioner].” The court found that the
GeoTime video “actively misrepresented” the CSLI evidence by showing a human silhouette moving in straight
lines between precise locations within each cell site’s
coverage area, even though that evidence could not be
used to determine the phone’s precise location or movements. The court observed that the CSLI evidence could
11
See footnote 10 of this opinion.
Turner v. Commissioner of Correction
have been presented in several “alternat[ive] and equally
correct” ways,12 but “the state chose to represent the cell
phone [as] a silhouette of a person traveling along a path
that coincided with key locations in this case.”
As to Strickland’s first prong, the court reasoned
that “Hussey’s strategy of attacking [the eyewitness]
identifications was a reasonable trial strategy. However,
[despite] having experience with Weaver and CSLI evidence . . . Hussey neither investigated the CSLI data,
requested a Porter hearing, appreciated the impact the
GeoTime [video] likely would have on the jury, [nor] in
any way challenged Weaver’s testimony and [related]
evidence. There is no evidence that [he] even did a rudimentary investigation into the CSLI [evidence] and
Weaver’s likely testimony. This complete lack of investigation prior to trial . . . is evidence of deficient performance by trial counsel that allowed the state to present
uncontested evidence that connected [the petitioner] to
the charged offenses. Weaver’s testimony and the GeoTime [video were] central to the state’s case and [were]
not cumulative. That evidence was . . . the proverbial
circumstantial glue that held together the fabric woven
by the state’s evidence. . . . Hussey neither investigated
the CSLI evidence nor conducted any cross-examination
of Weaver. . . . [T]his is deficient performance below that
of . . . reasonably competent trial counsel.” (Emphasis
in original.)
As to the prejudice prong, the habeas court determined that the petitioner failed to prove that he had
been prejudiced by Hussey’s failure to request a Porter
hearing because he had not shown that the CSLI evidence
would have been excluded altogether. The court, however, concluded that the petitioner demonstrated that
he had been prejudiced by Hussey’s failure to challenge
the admissibility of the misleading GeoTime video and
12
The habeas court reasoned that “[r]epresenting the cell phone could just as validly have been done by showing a single, unmoving dot for the entire duration, or a silhouette moving in a haphazard, random pattern at the edge of one or all of the [coverage areas], or even a silhouette slowly turning in circles of ever increasing radii around a central point.”
Turner v. Commissioner of Correction
Weaver’s related testimony.13 The court reasoned that
the eyewitness testimony presented at the petitioner’s
criminal trial was weak, whereas the GeoTime video was
“uncontested, uncontradicted, and highly suggestive,”
and “Weaver’s expert opinion would have been viewed
as highly convincing.” The court emphasized that the
prosecutor relied extensively on the GeoTime video in
summation and rebuttal, thereby magnifying the impact
the misleading evidence had on the jury. The court therefore granted in part the petition, vacated the petitioner’s
conviction, and ordered a new criminal trial. This appeal
followed. See footnote 1 of this opinion.
The applicable standard of review is well settled.
In reviewing ineffective assistance of counsel claims,
although the habeas court’s factual “findings will not
be disturbed unless they are clearly erroneous . . . [t]he
application of [the pertinent legal standard to] the habeas
court’s factual findings . . . presents a mixed question of
law and fact, which is subject to plenary review.” (Internal quotation marks omitted.) Diaz v. Commissioner of
Correction, 344 Conn. 365, 373, 279 A.3d 147 (2022).
I
Before considering the respondent’s claims on appeal,
we must resolve the parties’ dispute regarding the
basis for the habeas court’s judgment. The respondent
claims that “the granting of the writ was solely based on
Hussey’s failure (1) to investigate the CSLI evidence,
and (2) to cross-examine Weaver,” whereas the petitioner contends that the habeas court concluded that
Hussey “failed to adequately prepare and [to] present
a defense to the state’s [CSLI] evidence” on the basis
of Hussey’s “complete failure to respond to the highly
misleading GeoTime” video. The parties also disagree
as to whether the habeas court found that the GeoTime
video would have been excluded if Hussey had objected
13
The habeas court framed the prejudice inquiry as whether “the jury’s verdict [was] substantially influenced by Weaver’s uncontested testimony and use of the GeoTime rendition of [the petitioner’s] movements . . . .”
Turner v. Commissioner of Correction
to its admissibility on the grounds that it was misleading
and unduly prejudicial.
In his reply brief, the respondent argues that any claim
that Hussey performed deficiently in failing to object to
the GeoTime video as misleading or prejudicial is unpreserved because the petitioner did not distinctly raise that
claim before the habeas court, and the habeas court never
made such a finding. The respondent suggests that the
misleading nature of the GeoTime video pertained only to
Hussey’s failure to seek a Porter hearing, and the habeas
court concluded that the petitioner failed to establish
that that failure had prejudiced him by proving that
the CSLI evidence would have been excluded. According
to the respondent, “the [habeas] court did not conclude
that Hussey was ineffective for failing to object to, or
request the exclusion of, any portion of the CSLI evidence
on the ground that it was unduly prejudicial.” He further argues that, although the misleading nature of the
GeoTime video “may have informed” the habeas court’s
conclusion that Hussey performed deficiently, it “did
not, as the petitioner contends, serve as an independent
determination that Hussey was ineffective for failing
to object, ‘present a defense,’ or ‘respond’ to the CSLI
evidence through means other than cross-examination.”
We reject the respondent’s narrow construction of
both the petitioner’s ineffective assistance claims and
the habeas court’s decision. Instead, we conclude that
the habeas court’s determination that Hussey performed
deficiently is predicated on its findings that the GeoTime
video “actively misrepresented” the capabilities of CSLI
and that the video would not have been admitted into
evidence if Hussey had objected.14
“It is well established that the construction of a judgment presents a question of law over which we exercise
14
After the respondent filed his reply brief, the petitioner sought permission to file a late motion for articulation to resolve the parties’ dispute as to the significance of the habeas court’s finding that the GeoTime video was misleading and whether that video would have been excluded if Hussey had objected to it when offered by the state. Because
Turner v. Commissioner of Correction
plenary review. . . . In construing a trial court’s judgment, [t]he determinative factor is the intention of the
court as gathered from all parts of the judgment. . . .
Effect must be given to that which is clearly implied
as well as to that which is expressed. . . . The judgment
should admit of a consistent construction as a whole.”
(Citation omitted; internal quotation marks omitted.)
Bauer v. Bauer, 308 Conn. 124, 131, 60 A.3d 950 (2013).
Similar principles apply to our construction of pleadings. See, e.g., Hepburn v. Brill, 348 Conn. 827, 848,
312 A.3d 1 (2024) (“[t]he complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory [on] which it proceeded, and do substantial justice between the parties”
(internal quotation marks omitted)).
The record and the habeas court’s decision establish
that the petitioner distinctly raised his ineffective assistance claim predicated on Hussey’s failure to challenge
the admissibility of the GeoTime video. In the operative
habeas petition, the petitioner alleged that Hussey performed deficiently by failing to request a Porter hearing
or “to otherwise challenge the . . . admission of cell phone coverage maps . . . .” At the habeas trial, Romano testified that reasonably competent defense counsel “would be able
to know that [the GeoTime] video . . . is misleading, and,
at least, they would know to challenge it . . . .” Hussey
himself acknowledged that he should have objected to
the GeoTime video on the ground that it was unduly
prejudicial in its depiction of a human silhouette moving
to precise locations. In his posttrial brief, the petitioner argued that Hussey failed to “raise available challenges to
the admissibility and scope of” the state’s CSLI evidence,
including requesting the “removal of the depiction of a
we conclude that the habeas court’s memorandum of decision adequately sets forth its factual findings and its conclusions of law in light of those facts, an articulation is not necessary for meaningful appellate review. See, e.g., Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 687–88, 804 A.2d 823 (2002) (articulation is unnecessary when memorandum of decision adequately states factual basis for court’s decision). Accordingly, the petitioner’s request for permission to file a late motion for articulation is denied.
Turner v. Commissioner of Correction
person moving around the city.” Thus, the petitioner
distinctly raised his ineffective assistance claim related
to the GeoTime video by pleading it in his petition and
by presenting evidence and argument in support of it
at the habeas trial. See, e.g., Eubanks v. Commissioner
of Correction, 329 Conn. 584, 601–602, 188 A.3d 702
(2018) (claim is distinctly raised when it is set forth in
habeas petition and petitioner presents evidence and
argument in support thereof at habeas trial).
Importantly, the habeas court understood the petitioner’s claim in this way. At the outset of its decision,
the habeas court stated its conclusion that Hussey
“performed deficiently when he failed to challenge the
admissibility of [CSLI] testimony, including [the GeoTime video] purporting to show the [petitioner’s] path of
travel, from . . . Weaver and that this failure prejudiced
[the petitioner].” (Emphasis added.) Although the court
did not expressly state that the GeoTime video would
have been excluded as unduly prejudicial if Hussey had
objected at trial, that conclusion is necessarily implied
by the court’s analysis. The court (1) found that the
GeoTime video “not only stretched the capabilities of
CSLI, but actively misrepresented it,” (2) noted that the
significance of “GeoTime’s visual rendition of movement
by the cell phone, which was depicted as a person’s silhouette, cannot be overstated,” (3) discussed the various,
alternative ways that the CSLI evidence could have been
accurately depicted in the GeoTime video; see footnote
12 of this opinion; and (4) “examine[d] the impact of the
uncontested, uncontradicted, and highly suggestive evidence on the [jury] resulting from [Hussey’s] deficient
performance . . . .”
Admittedly, the habeas court’s decision is not a model
of clarity in this respect. The court’s initial statement
of its conclusion does not refer to Hussey’s failure
to investigate the CSLI evidence or to cross-examine
Weaver, whereas the court emphasized those failures
in its analysis of the petitioner’s ineffective assistance
claims. Nevertheless, it is readily apparent that the
Turner v. Commissioner of Correction
court determined that (1) reasonably competent counsel
would have challenged the admissibility of the GeoTime
video or responded to that misleading evidence in some
way, and (2) because the GeoTime video “actively misrepresented” the capabilities of CSLI, if Hussey had
challenged the admissibility of the exhibit on that basis,
the objection would have been sustained. See Conn. Code
Evid. § 4-3 (“[r]elevant evidence may be excluded if its
probative value is outweighed by the danger of unfair
prejudice . . . or misleading the jury”). The respondent’s
suggestion that the misleading nature of the GeoTime
video was relevant only to Hussey’s failure to request a
Porter hearing is belied by the habeas court’s analysis,
which focused exclusively on the GeoTime video and its
impact on the jury.
Consequently, we agree with the petitioner that the
habeas court determined that Hussey had performed
deficiently by failing to challenge or respond to the misleading GeoTime video and that the GeoTime video would
not have been admitted into evidence if there had been
an appropriate challenge to its admissibility. Having
resolved this threshold issue, we turn to the respondent’s
challenges to the habeas court’s judgment.
II
The respondent first claims that the habeas court incorrectly concluded that Hussey had performed deficiently.
Specifically, he claims that (1) the record does not support the court’s factual finding that Hussey failed to investigate the CSLI evidence, and (2) Hussey’s testimony as
to his strategic reasons for declining to cross-examine
Weaver precluded the court from finding that this failure constituted deficient performance.15 We disagree.
A criminal defendant’s right to the effective assistance
of counsel is guaranteed by the sixth amendment to the
15
Due to the respondent’s misreading of the habeas court’s decision, he neither challenges the habeas court’s factual finding that the GeoTime video was misleading nor argues that the habeas court improperly relied on that fact to conclude that Hussey had performed deficiently by failing to challenge the admissibility of that misleading exhibit.
Turner v. Commissioner of Correction
United States constitution, which serves “to ensure that
criminal defendants receive a fair trial.” Strickland v.
Washington, supra, 466 U.S. 689; see id., 685–86. To
satisfy Strickland’s performance prong, a petitioner
“must show that counsel’s representation fell below an
objective standard of reasonableness.” Id., 688. In other
words, the petitioner must establish that, considering
all of the circumstances, “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.” (Internal quotation marks
omitted.) Michael T. v. Commissioner of Correction, 319
Conn. 623, 631, 126 A.3d 558 (2015).
“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. Because
of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”
(Emphasis omitted; internal quotation marks omitted.)
Id., 632.
The nature and extent of cross-examination are a matter of trial strategy. See, e.g., Balbuena v. Commissioner of Correction, 231 Conn. App. 289, 338, 332 A.3d
1008, cert. denied, 352 Conn. 905, 335 A.3d 845 (2025).
“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland
v. Washington, supra, 466 U.S. 690–91.
Turner v. Commissioner of Correction
Because “Strickland calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind,” the habeas court is not
confined to counsel’s stated strategic reasons; rather,
the court must “entertain the range of possible reasons
trial counsel might have had for the challenged action.”
(Emphasis omitted; internal quotation marks omitted.)
Jordan v. Commissioner of Correction, 341 Conn. 279,
290, 267 A.3d 120 (2021).
A
The respondent claims that the habeas court’s finding
that Hussey failed to investigate the CSLI evidence is
not supported by the evidence in the record and, alternatively, that “any limitation in Hussey’s investigation . . . is reasonably explained by Hussey’s strategic decision to
focus more heavily on undermining the state’s eyewitness identification evidence.” Relying on the “strong
presumption that counsel’s attention to certain issues
to the exclusion of others reflects trial tactics rather
than sheer neglect”; (internal quotation marks omitted)
Harrington v. Richter, 562 U.S. 86, 109, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011); the respondent argues that
Hussey reasonably limited his investigation “because
the CSLI evidence, at best, placed the petitioner within
two miles of the crime scene at the time of the shooting,
whereas the eyewitnesses placed the petitioner at the
crime scene and identified the petitioner as the shooter.”
(Emphasis omitted.) The petitioner responds that, even
if Hussey’s decision to limit his investigation into the
CSLI evidence was a reasonable strategy, “it could not
justify [Hussey’s] later action of completely failing to
respond to the GeoTime video in any way.” We agree
with the petitioner.
As Romano’s testimony at the habeas trial established,
reasonably competent defense counsel would have recognized the misleading aspects of the GeoTime video and
would not have allowed it to be admitted into evidence
without challenging it in some way. The habeas court
acknowledged that Hussey’s defense strategy of focusing
Turner v. Commissioner of Correction
on the eyewitness identifications was reasonable but
then immediately noted that Hussey neither “appreciated the impact the GeoTime [video] likely would have
on the jury” nor “challenged Weaver’s testimony and
[related] evidence” at all. Thus, the court’s determination that Hussey performed deficiently does not depend
on the extent of Hussey’s investigation into the CSLI
evidence and Weaver’s testimony because Hussey’s failure to respond to that evidence in any way allowed “the
GeoTime [video] to appear more reliable than it was.”
Put differently, regardless of the adequacy of Hussey’s
pretrial investigation into the CSLI evidence, Hussey’s
failure to respond to that evidence was the basis for the
habeas court’s finding of deficient performance, and the
respondent has not challenged that finding in this appeal.
B
The respondent next claims that the habeas court erred
in concluding that Hussey performed deficiently by failing to cross-examine Weaver. He argues that, when “the
evidence [is viewed] from Hussey’s perspective at the
time of the criminal trial, it is clear that Hussey made
an informed, strategic decision not to cross-examine
Weaver.” According to the respondent, Hussey’s strategic reasons included (1) focusing on the eyewitness identification testimony, (2) not wanting to go “toe-to-toe”
with Weaver and instead opting to use his testimony to
support the defense’s theory of the case during closing
argument, (3) believing that, because the CSLI evidence
was “a reach,” allowing it to stand demonstrated the
weakness of the state’s case, and (4) believing that the
GeoTime video and related testimony had not hurt his
case, and that he “didn’t have anything to work with”
on cross-examination. The respondent’s argument again
misunderstands the petitioner’s claim and the basis for
the habeas court’s decision.
We agree that Hussey’s testimony at the habeas trial
makes clear that his trial strategy was to focus on the eyewitness identifications and to downplay the significance
of the CSLI evidence. Hussey testified that he was not
Turner v. Commissioner of Correction
“completely concerned with” the GeoTime video because
it seemed like “a reach” by the state when Weaver “had
to acknowledge that you’re at least” one and one-half
miles away from the cell site. Rather than cross-examining Weaver, Hussey intended to “use what he said to
[Hussey’s] advantage in [his] closing.” Hussey did not
recall his specific arguments but assumed that he would
have focused on the facts that the phone could have been
anywhere within a one and one-half mile radius of the
various cell sites and that Weaver “couldn’t say anything
. . . with any degree of certainty . . . .”
Hussey’s stated strategy was not objectively unreasonable. Competent counsel reasonably could determine that
it is better to point out flaws in an expert’s testimony
during closing argument than to go “toe-to-toe” with the
expert during cross-examination. See, e.g., Resnick v.
United States, 7 F.4th 611, 621 (7th Cir. 2021) (defense
counsel employed reasonable trial strategy of allowing
prosecution “to overplay its hand with expert testimony”
and “followed through on that strategy” by arguing in
closing “that such overkill looked ridiculous” (internal
quotation marks omitted)); State v. Pandeli, 242 Ariz.
175, 181–83, 394 P.3d 2 (2017) (defense counsel made
reasonable, strategic decision to forgo cross‑examining
state’s expert witness to avoid eliciting testimony that
could further harm defense), cert. denied, 583 U.S. 1062,
138 S. Ct. 645, 199 L. Ed. 2d 545 (2018); State v. Rhodes,
657 N.W.2d 823, 844 (Minn. 2003) (defense counsel did
not perform deficiently by seeking to minimize impact of
“the state’s strongest witness” with limited objections
on direct examination “to get [the witness] on and off the
stand quickly”). Similarly, counsel could tactically decide
not to object to the admission of certain evidence if he
thought he could show the unreliability of the evidence
during closing argument. The problem, however, is that
Hussey failed to execute any such strategy, as reflected
in the record of the petitioner’s criminal trial.
Hussey testified at the habeas trial that he viewed the
GeoTime video as “a reach” on the state’s part and that he
Turner v. Commissioner of Correction
planned to use Weaver’s concessions in closing, yet, when
the prosecutor in closing leaned heavily on the GeoTime
video and CSLI evidence, Hussey made only a passing
reference to Weaver’s concessions and said nothing about
the video’s distortions of the underlying data.16 Instead,
he floated the tenuous claim that the phone was Christian’s—an argument that, given Colon’s identification of
the petitioner’s phone and subscriber information, bordered on the fanciful and only reinforced the prosecutor’s
argument that the GeoTime video accurately depicted
the movement of the phone around each incriminating
location. Rather than minimizing the significance of the
CSLI evidence, Hussey’s closing argument effectively
endorsed its accuracy. “Because advocacy is an art and
not a science”; Strickland v. Washington, supra, 466
U.S. 681; defense counsel has wide latitude in strategy,
and Hussey could have employed any number of tactics
in defending the petitioner. As Romano testified at the
habeas trial, reasonably competent counsel could have
challenged the reliability of the CSLI and the misleading
GeoTime video through a Porter hearing, a motion in
limine, cross‑examination, or a defense expert. Hussey
pursued none of these options and did not follow through
on his own alternative strategy. Simply having a strategy
is not enough. Effective assistance of counsel requires
implementation of the strategy, and Hussey performed
deficiently by failing to execute his strategy or any of
the alternative strategies identified by Romano, which
allowed the state’s “strongest piece of evidence” to appear
virtually unassailable. See, e.g., Elliott v. Williams, 248
F.3d 1205, 1209 (10th Cir.) (“the proper functioning of
the adversarial process contemplates the presentation of
adverse views of the evidence”), cert. denied, 534 U.S.
927, 122 S. Ct. 286, 151 L. Ed. 2d 211 (2001).
16
Hussey noted only that Weaver could not say which direction the phone was traveling, who had it, or even where it was—just where it wasn’t. He added, without explanation, that, if the phone really were the petitioner’s, “he doesn’t go anywhere.” Contrary to his testimony at the habeas trial, Hussey neither challenged the range of the CSLI information nor argued that the GeoTime video was misleading or inaccurate.
Turner v. Commissioner of Correction
On these facts, Hussey’s failure to present any meaningful defense to the state’s CSLI evidence, in particular to the GeoTime video, was “outside the wide range
of professionally competent assistance.” Strickland v.
Washington, supra, 466 U.S. 690. Accordingly, in light
of Hussey’s proffered strategy, and in the absence of
any other conceivable reason for failing to challenge or
respond to the CSLI evidence, we conclude that the habeas
court correctly determined that Hussey’s representation
“fell below an objective standard of reasonableness.”
Id., 688.
III
The respondent next claims that the habeas court erred
in determining that Hussey’s deficient performance
prejudiced the petitioner. We disagree.
“To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Internal quotation marks omitted.) Jordan v. Commissioner of Correction, supra, 341 Conn. 287. “A reasonable probability is
a probability sufficient to undermine confidence in the
outcome. . . . In making a prejudice determination, habeas
courts must consider the totality of the evidence before
the . . . jury. . . . [S]ome errors will have had a pervasive effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, whereas some
will have had an isolated, trivial effect. . . . [A] verdict or conclusion only weakly supported by the record is more
likely to have been affected by errors than one with overwhelming record support. . . . A court’s ultimate focus
of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged.” (Citations
omitted; internal quotation marks omitted.) Grant v.
Commissioner of Correction, 354 Conn. 30, 41–42, 348
A.3d 463 (2026).
At the petitioner’s criminal trial, the state presented
testimony from Lara and DeJesus, who testified that
Turner v. Commissioner of Correction
they had identified the petitioner as the shooter in a
photographic array, and the arrays were introduced into
evidence. Lara was uncooperative and refused to answer
questions at several points during cross-examination but
eventually conceded that she did not know whether the
petitioner was the person who shot the victim. DeJesus
testified on cross-examination that he saw the shooter
“[f]or a couple of seconds,” and Hussey highlighted inconsistencies between DeJesus’ statement to the police and
his testimony at trial. For example, DeJesus admitted
that, in his initial statement to the police, he described
the shooter as having cornrows, which did not describe
the petitioner. DeJesus, however, maintained that he
had “no doubts” that the petitioner was the shooter.
In addition to the CSLI evidence, there was testimony
from Colon that the petitioner had asked her to cash a
check for Christian within hours of the shooting and that
she had identified the phone recovered by the police as
the petitioner’s. The state also presented consciousness
of guilt evidence—the petitioner fled when approached
by the police, changed his cell number the day after the
shooting, and gave a false name when arrested.
The habeas court found prejudice because Hussey failed
to challenge the GeoTime video or Weaver’s accompanying testimony, concluding that “the uncontested and
highly suggestive GeoTime rendering of the CSLI data
affected the outcome of the jury trial.” The court emphasized that the state’s case was not strong: the eyewitness
identifications by Lara and DeJesus were weak and had
been effectively undermined by Hussey. In contrast, the
GeoTime video and Weaver’s testimony formed the core
of the prosecution’s theory, as shown by the prosecutor’s
closing, in which he labeled the phone the state’s “strongest piece of evidence” and relied heavily on the video’s
misleading depiction of the phone’s movements. Citing
State v. Raynor, 337 Conn. 527, 547–48, 254 A.3d 874
(2020), and State v. Jackson, 334 Conn. 793, 818–19,
821, 224 A.3d 886 (2020), in which we concluded that the
improper admission of expert testimony was not harmless
error, the court observed that technical expert visuals of
Turner v. Commissioner of Correction
this sort are especially persuasive to juries and concluded
that “Weaver’s expert opinion would have been viewed
as highly convincing,” particularly because the defense
offered no challenge to that evidence.
On the basis of our independent review of the record,
we conclude that the habeas court properly assessed
the impact of Hussey’s deficient performance on the
outcome of the petitioner’s criminal trial. As the habeas
court noted, the state’s case was not overwhelming and
relied primarily on the CSLI evidence, in particular the
GeoTime video, to connect the petitioner to the murder. To be sure, Colon’s testimony implicated the petitioner in the sale of the victim’s jewelry, but, given the
weakness in the eyewitness identifications, the CSLI
evidence was the state’s strongest evidence tying the
petitioner to the murder. The prosecutor acknowledged
this point and relied extensively on the GeoTime video in
summation and rebuttal. Hussey’s failure to challenge
the misleading GeoTime video in any way left the jury
with no reason to question its accuracy. Considering the
persuasive effect of expert evidence, a visual depiction
that overstated the capabilities of the underlying data
was particularly powerful when left unchecked by the
defense. Had Hussey made any effort to undermine that
evidence, we agree with the habeas court that there is a
reasonable probability that the result of the proceeding
would have been different.
The respondent’s arguments to the contrary suffer
from his misreading of the habeas court’s decision.
He argues that the petitioner failed to show prejudice
for four reasons: (1) because the petitioner did not call
Weaver at the habeas trial, he cannot establish harm
from Hussey’s failure to cross‑examine him; (2) the petitioner presented no new CSLI evidence that the jury had
not already heard; (3) the habeas court never concluded
that the CSLI evidence was improperly admitted or that
it would have been excluded had counsel challenged it;
and (4) Weaver’s testimony was not the only evidence
Turner v. Commissioner of Correction
identifying the petitioner, making this case distinguishable from Raynor and Jackson. We are not persuaded.
First, we agree with the respondent that, when a petitioner claims that the failure to cross-examine a witness
constituted deficient performance, he ordinarily must
demonstrate how a particular witness would have testified in order to establish prejudice. See, e.g., Jones v.
Commissioner of Correction, 212 Conn. App. 117, 131–
32, 274 A.3d 237, cert. denied, 343 Conn. 933, 276 A.3d
975 (2022). Here, however, the petitioner’s claim does
not rest on Hussey’s failure to cross-examine Weaver. As
we previously noted, the decision not to cross-examine
Weaver would have been a reasonable tactical decision
had Hussey employed a different strategy to challenge
the CSLI evidence, particularly the GeoTime video. As
the habeas court found, though, Hussey failed to challenge that evidence in any meaningful way. The failure to
call Weaver as a witness at the habeas trial was therefore
inconsequential to the habeas court’s ultimate analysis.
Second, the petitioner was not required to present
“new” CSLI evidence to show prejudice because the problem with the GeoTime video should have been evident to
a lawyer familiar with CSLI evidence, as Hussey claimed
he was. Clark and Weaver had both acknowledged that
CSLI does not pinpoint a cell phone’s location or trace its
movements, which is precisely what the video purported
to do, and Hussey did nothing to disabuse the jury of
that suggestion.
Third, as we concluded in part I of this opinion,
although the habeas court did not expressly state that
the GeoTime video would have been excluded had Hussey
raised a proper objection to its admissibility, that conclusion is clearly implied from the court’s finding that the
GeoTime video “actively misrepresented” the capabilities of CSLI.17
Finally, the respondent contends that, because Weaver’s testimony was not the only evidence identifying the
17
During oral argument before this court, counsel for the respondent argued that, even if the GeoTime video had been excluded, the jury
Turner v. Commissioner of Correction
petitioner, this case is distinguishable from State v.
Raynor, supra, 337 Conn. 527, and State v. Jackson,
supra, 334 Conn. 793. Neither case, though, involved an
underlying factual finding, as in the present case, that the state’s CSLI evidence was misleading because it “actively
misrepresented” the capabilities of the underlying data,
a finding the respondent does not challenge. And neither
case purports to announce a bright-line rule that a habeas
petitioner can prove he was prejudiced by the failure to
exclude evidence only if there is no other evidence in
the criminal trial record identifying the petitioner as
the perpetrator. The habeas court in the present case
considered the eyewitness testimony presented at trial
and found it to be weak. By contrast, the court found
that the misleading animated map has a visceral impact
on the viewer. We cannot conclude that the habeas court
erred in its assessment of the impact of that misleading
GeoTime video on the verdict.
The judgment is affirmed.
In this opinion the other justices concurred.
still would have had the “still images of the mapped phone calls” that also were admitted into evidence. Those “still images,” however, are screenshots from the GeoTime video depicting a human silhouette in specific locations inside the coverage areas. Notably, these images also display the underlying data for each mapped call, including the distances between the cell site used for the call and the cell sites associated with the preceding and subsequent calls, as well as the calculated travel speed based on the data. In doing so, the screenshots reinforce the misleading aspects of the GeoTime video by indicating movement and by depicting a human silhouette in a specific location.