198 Conn.App. 345
Conn. App. Ct.2020Background
- On November 20, 2010 Davis, intoxicated after boating and drinking, crashed into another motorist (Jarmoszko), offered $200 to settle, said “why don’t we pull over to the side and settle it like men,” then began yelling and banging on Jarmoszko’s car window.
- Police found Davis later unresponsive in his boat, then belligerent and combative; EMTs transported him to the hospital where blood was drawn (BAC 0.165); hospital records were later obtained by warrant.
- Davis was convicted (jury/trial) of multiple counts including DUI, bribery of a witness (§53a-149), breach of the peace in the second degree (§53a-181(a)(3)), and interfering with an officer; direct appeal failed.
- In habeas proceedings Davis claimed ineffective assistance of trial and appellate counsel for three main failures: (1) not challenging §53a-149 as facially overbroad; (2) not requesting/arguing a “true threats” jury instruction for the §53a-181(a)(3) breach‑of‑peace charge; and (3) not suppressing the hospital blood test results (statutory §14‑227a(k) and Fourth Amendment grounds).
- The habeas court denied relief; on appeal the Connecticut Appellate Court affirmed, holding counsel’s choices were reasonable strategy, novel legal theories were speculative, the breach‑of‑peace charge was predicated on conduct (so First Amendment not implicated), and the blood draw/admission claims lacked merit and prejudice.
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| 1) Counsel failed to challenge §53a‑149 as facially overbroad (bribery) | Counsel should have argued statute could reach lawful conduct (e.g., civil settlements), so overbroad on its face | Counsel reasonably pursued vagueness as‑applied and tactical choices not to press a novel overbreadth claim were sensible; novel claims speculative | No ineffective assistance. Failure to pursue a novel overbreadth theory was not deficient and petitioner cannot show prejudice. |
| 2) Counsel failed to request/argue a true‑threats jury instruction for §53a‑181(a)(3) (breach of peace) | Speech was not a true threat; an instruction would narrow the statute and likely change verdict | The prosecution’s theory relied on conduct (not pure speech); fighting words/true‑threat doctrines were not outcome‑determinative; appellate claim was not preserved | No ineffective assistance. First Amendment not implicated because conduct (banging on window, aggressive behavior) was the predicate; habeas court also found speech amounted to unprotected fighting words; appellate instructional claim unpreserved. |
| 3) Counsel failed to suppress or challenge admission of hospital blood test results (§14‑227a(k) / 4th Amendment) | Blood draw/admission should have been suppressed because statutory prerequisites (§14‑227a(k)) and Fourth Amendment protections were not satisfied | Trial counsel moved to exclude under §14‑227a(k); statute is permissive (not exclusive) per Kirsch; record supports medical necessity for transport and blood draw, making 4th Amendment challenge weak | No ineffective assistance. Counsel reasonably litigated the issue; appellate strategy to avoid a weak Fourth Amendment claim was sound; petitioner failed to show prejudice. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged test for ineffective assistance: performance and prejudice)
- Ledbetter v. Commissioner of Correction, 275 Conn. 451 (2005) (counsel’s failure to advance novel legal theories is not ineffective assistance)
- State v. Moulton, 310 Conn. 337 (2013) (when prosecution is predicated on speech, defendant is entitled to a true‑threats instruction to avoid overbreadth)
- State v. DeLoreto, 265 Conn. 145 (2003) (fighting‑words doctrine allows criminalization of certain unprotected speech under breach‑of‑peace statutes)
- State v. Kirsch, 263 Conn. 390 (2003) (statutory prerequisites for hospital blood evidence are permissive; failure to meet them does not automatically bar admissibility)
- Missouri v. McNeely, 569 U.S. 141 (2013) (nonconsensual blood draws are searches under the Fourth Amendment; warrant generally required absent exigent circumstances)
- State v. Davis, 160 Conn. App. 251 (2015) (direct appeal holding monetary offers to settle a civil claim ordinarily do not fall within §53a‑149)