UNDERLYING CRIMINAL TRIAL AND DIRECT APPEAL
The
Appellate Court’s decision on direct appeal summarized the
underlying facts as reasonably found by the jury. "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.[1] 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.[2] 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. 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." 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 convicted by the jury of one count of
operating a motor vehicle with an elevated blood alcohol
content in violation of General Statutes § 14-227a(a)(2), one
count of bribery of a witness in violation of General
Statutes § 53a-149(a), one count of breach of the peace in
the second degree in violation of General Statutes §
53a-181(a)(3) and one count of interfering with a police
officer in violation of General Statutes § 53a-167a. The
trial court, after the jury returned these findings of
guilty, convicted the petitioner on a part B information of
being a third time offender in violation of § 14-227a(g)(3).
The
petitioner appealed from the judgment of conviction and
claimed "that § 53a-149 is unconstitutionally vague as
applied and that the evidence was insufficient to support a
finding of guilt beyond a reasonable doubt on the bribery of
a witness and the third time offender counts."
Id., 253-54. The Appellate Court affirmed the
judgment of the trial court. Id., 270. The
petitioner then brought the present habeas corpus matter.
By his
revised amended petition dated November 16, 2017, the
petitioner claims ineffective assistance of both trial and
appellate counsel. The petitioner’s numerous allegations of
ineffective assistance of trial counsel are listed in
paragraph 9a. through 9l . Tough
cases lead to hard choices for defense counsel. The essential
defense at trial was that the petitioner was not driving the
vehicle and that his monetary offer to the victim was akin to
that of an insurance adjuster’s.
"
‘In Strickland v. Washington, [ 466 U.S. 668, 687
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States
Supreme Court established that for a petitioner to prevail on
a claim of ineffective assistance of counsel, he must show
that counsel’s assistance was so defective as to require
reversal of [the] conviction ... That requires the petitioner
to show (1) that counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defense ...
Unless a [petitioner] makes both showings, it cannot be said
that the conviction ... resulted from a breakdown in the
adversary process that renders the result unreliable ...
Because both prongs ... must be established for a habeas
petitioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’ (Citation omitted;
internal quotation marks omitted.) Vazquez v.
Commissioner of Correction, 128 Conn.App. 425, 429-30,
17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277
(2011).
"
‘To satisfy the perfoitnance prong [of the
Strickland test] 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.’ (Internal quotation marks omitted.) Boyd v
Commissioner of Correction, 130 Conn.App. 291, 295, 21
A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).
‘[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...
