Davis v. Comm'r of Corr.

• Decision Date: 23 June 2020
• Docket Number: AC 42372
• Citation: 198 Conn.App. 345,233 A.3d 1106
• Parties: Edward V. DAVIS v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

198 Conn.App. 345

233 A.3d 1106

Edward V. DAVIS

v.COMMISSIONER OF CORRECTION

AC 42372

Appellate Court of Connecticut.

Argued December 4, 2019

Officially released June 23, 2020

Damian K. Gunningsmith, New Haven, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

Keller, Elgo and Eveleigh, Js.

ELGO, J.

The petitioner, Edward V. Davis, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. In this certified appeal, the petitioner claims that the court improperly rejected his claims of ineffective assistance of both trial and appellate counsel for their failure (1) to challenge General Statutes § 53a-149 as unconstitutionally overbroad on its face with respect to the charge of bribery of a witness, (2) to request a jury instruction on "true threats" with respect to the charge of breach of the peace in the second degree under General Statutes § 53a-181 (a) (3), and (3) to challenge the admissibility of the petitioner's blood test results from the hospital where he was taken after the traffic incident at issue. We affirm the judgment of the habeas court.

The following facts underlying the petitioner's conviction, as set forth by this court in his direct appeal, are relevant to our resolution of this appeal. "On November 20, 2010, the [petitioner] and his stepson, Jonathan Oakes, were boating on the Connecticut River. While on the boat, the [petitioner] consumed eight or nine beers. In the late afternoon, the two returned the boat to a boat launch in East Hartford, loaded it onto a trailer attached to the [petitioner's] truck, and drove away. At approximately 4:50 p.m., the [petitioner] and Oakes stopped at a liquor store and purchased a bottle of Peppermint Schnapps. The [petitioner] later admitted to a police officer that he had personally consumed almost a liter of Peppermint Schnapps.

"At approximately 5:30 p.m., while driving his truck on Route 83 in Manchester, the [petitioner] collided with a vehicle that had been stopped at a traffic signal. The driver of the other vehicle, Paul Jarmoszko, testified that he initially heard tires screech and then felt ‘a jolt and the car got pushed forward ... a few feet.’

After the accident, Jarmoszko and the [petitioner] exited their respective vehicles. Jarmoszko immediately went to inspect the damage on the rear of his vehicle, while the [petitioner] inspected his boat. Shortly after inspecting his boat, the [petitioner] met Jarmoszko between the two vehicles.

"After observing the damage to Jarmoszko's vehicle, the [petitioner] offered to pay him a ‘couple of hundred bucks ....’ Jarmoszko rejected the offer, at which point the [petitioner] ‘got agitated and said something [to the effect of] this is how it's going to be? Why don't we pull over to the side and settle it like men?’ Jarmoszko, believing the [petitioner] wanted to fight him, told the [petitioner] he was going to contact the police and got back into his vehicle to place the phone call. While speaking to the police, Jarmoszko observed the [petitioner] bang on his car's window several times, yell and then walk away. Jarmoszko later heard the engine of the [petitioner's] truck start.

"Shortly afterward, Michael Magrey, a Manchester police officer, was dispatched to the scene of the accident. Magrey parked his police cruiser behind the truck and approached the vehicle's driver's side. He observed a single occupant in the driver's seat of the truck who was revving the vehicle's engine and ‘appeared to be out of it, under the influence of something.’ This individual was later identified as Oakes. Magrey asked Oakes to turn the truck's engine off, hand over the keys and step out of the vehicle. Oakes followed the officer's instructions and sat on the curb.

"Magrey then went to make sure that Jarmoszko was not injured. During his interaction with Jarmoszko, Magrey was informed that Oakes was not the person Jarmoszko had observed exiting the driver's side door after the accident. On the basis of this information, Magrey asked Oakes where his companion was located, to which Oakes responded that he was ‘in the back.’ The officer eventually located the [petitioner] lying down inside the boat. His skin appeared blue or purple, was cold to the touch, and his clothing was wet. Although initially unresponsive to questioning, the [petitioner's] demeanor changed drastically. He became hostile and belligerent toward Magrey, yelling and cursing at him. Magrey testified that the [petitioner] kept ‘coming at me’ and he had to ‘put [the petitioner] in an arm bar [to] keep him down.’ Eventually, another officer got into the boat and was able to assist Magrey in placing handcuffs on the [petitioner]. The [petitioner] remained in this state of belligerence, attempting to spit on Magrey and ambulance personnel who were attempting to treat him. He was placed on a hospital gurney, while in restraints, and taken to Manchester Hospital for treatment. The [petitioner] was treated and later released from the hospital.

"Medical records from the [petitioner's] treatment at the hospital revealed that he had a blood alcohol content of 0.165. The [petitioner] was subsequently arrested by officers of the Manchester Police Department. While in police custody, the [petitioner] admitted to Magrey that he had spoken to Jarmoszko after the accident and had offered him money in order to avoid police involvement. During this discussion, the [petitioner] further admitted to having consumed almost a liter of Peppermint Schnapps prior to the accident.

"The state charged the [petitioner] with the following counts in the part A information: (1) driving under the influence, (2) bribery of a witness, (3) threatening in the second degree, (4) breach of the peace in the second degree and (5) interfering with an officer. The state also charged the [petitioner], under the part B information, with being a third time offender. The part A counts were tried to a jury and, at the conclusion of trial, a verdict of guilty was returned on all counts with the exception of the threatening count.¹ Afterward, the state proceeded on the part B information and the case was tried to the court. At the conclusion of trial, the court found the [petitioner] guilty on the count of being a third time offender." (Footnotes omitted; footnote added.) State v. Davis , 160 Conn. App. 251, 254–57, 124 A.3d 966, cert. denied, 320 Conn. 901, 127 A.3d 185 (2015). The petitioner was sentenced to a total effective term of ten years of imprisonment, execution suspended after four years, followed by five years of probation with special conditions. In his direct appeal, the petitioner claimed that (1) § 53a-149 is unconstitutionally vague as applied, (2) there was insufficient evidence to support the guilty finding with respect to the count of being a third time offender under General Statutes § 14-227a, and (3) there was insufficient evidence to support the guilty verdict on the count of bribery of a witness. See id., at 253–54, 124 A.3d 966.

Following an unsuccessful direct appeal of his conviction, the petitioner commenced the underlying habeas action. In his operative petition for a writ of habeas corpus, his November 16, 2017 revised amended petition, the petitioner alleged one count of ineffective assistance of trial counsel, Attorney Stephen F. Cashman, and one count of ineffective assistance of appellate counsel, Attorneys Peter G. Billings and Sean P. Barrett. Each count alleged various deficiencies with respect to counsel's representation of the petitioner. Following a trial, the habeas court denied the petition for a writ of habeas corpus, finding no merit to the various claims of ineffective assistance allegedly rendered by both trial and appellate counsel. The court subsequently granted the petition for certification to appeal, and this appeal followed.

We begin by setting forth the standard of review and relevant principles of law that govern our resolution of the petitioner's appeal. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. ... Historical facts constitute a recital of external events and the credibility of their narrators. ... Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of the witnesses and the weight to be given to their testimony. ... 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." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012).

"The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of counsel for his defense. ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel." (Citation omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction , 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). "To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for coun...