Case Information
*1 ***********************************************
The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ***********************************************
EDWARD V. DAVIS COMMISSIONER OF CORRECTION (AC 42372) Keller, Elgo and Eveleigh, Js.
Syllabus The petitioner, who had been convicted of various crimes, including bribery
of a witness, in connection with a traffic incident, sought a writ of habeas corpus, claiming that his trial counsel and appellate counsel rendered ineffective assistance. The petitioner claimed that counsel, inter alia, improperly failed to challenge the bribery statute (§ 53a-149) as unconstitutionally overbroad on its face because it arguably could encompass legal activity. The petitioner further claimed that his trial counsel failed to request a jury instruction on true threats with respect to the petitioner’s conviction under the statute (§ 53a-181 (a) (3)) crimi- nalizing breach of the peace in the second degree and that his appellate counsel failed to challenge that decision on direct appeal. The petition- er’s conviction stemmed from an incident in which he drove his truck into a vehicle driven by J that was stopped at a traffic signal, causing damage. When J rejected the petitioner’s offer to pay him for the damage, the petitioner, who was intoxicated, became agitated and stated to J, ‘‘Why don’t we pull over to the side and settle it like men?’’ J then observed the petitioner yelling and banging on J’s car window while J was calling the police. When the police arrived, an officer found the petitioner lying face down in the boat attached to the rear of the truck. The petitioner’s skin was cold and appeared blue or purple, his clothing was wet, and he yelled and cursed at the police and ambulance personnel who attempted to treat him. The police told the emergency medical technician who responded to the scene to take the petitioner to a hospi- tal, where the petitioner was admitted and his blood was drawn and tested. The state issued a subpoena after the petitioner was discharged from the hospital and obtained his blood test results, which were admit- ted into evidence. The habeas court rendered judgment denying the petition. Held :
1. The petitioner’s claim that his trial counsel and appellate counsel rendered
ineffective assistance for having failed to challenge the bribery statute as facially overbroad was without merit: a. The petitioner could not prevail on his claim that his trial counsel rendered ineffective assistance by failing to pursue the novel constitu- tional argument that § 53a-149 was overbroad because it could encom- pass legal activity such as civil settlement negotiations, as that theory was untested in this state’s courts and, thus, fatal to the petitioner’s ability to establish prejudice; the chances of success in advancing novel legal theories are purely speculative, a petitioner must do more than proffer a speculative outсome to establish prejudice, and a conclusion that counsel rendered ineffective assistance as a result of the manner in which he argued that theory would produce absurd results. b. The trial court properly concluded that appellate counsel did not ren- der deficient performance but employed well reasoned and researched lines of argument, as counsel believed that the case concerned how com- mon people would view § 53a-149 as inapplicable to the petitioner’s case, counsel was not obligated to raise every conceivable claim on appeal, counsel pursued the claims he believed were the strongest on the basis of his review of the law and the trial record, and, as a claim that § 53a-149 was overbroad was as novel a theory on appeal as it was at trial, this court did not need to address whether the petitioner was prejudiced. 2. The petitioner could not prevail on his claim that his counsel rendered ineffective assistance by failing to request at trial and to argue on direct
appeal that the trial court should have given the jury an instruction on true threats with respect to the charge of breach of the peace in the second degree: a. Contrary to the assertion by the respondent Commissioner of Correc- tion, the petitioner’s claim was properly before this court, the habeas
court having concluded that the petitioner’s speech amounted to fight- *3 ing words, which may be criminalized under § 53a-181 (a) (3), and the petitioner challenged that determination by arguing that it ignored the state’s theory as presented to the jury. b. The habeas court properly determined that the petitioner failed to prove that he was prejudiced by the lack of a true threats instruction, as the first amendment was not implicated because the petitioner’s course of conduct, rather than his speech, was the predicate for the charge under § 53a-181 (a) (3), and, although a defendant is entitled to a true threats instruction only when his statements constitute a true threat, the petitioner failed to establish that it was reasonably probable that, had such an instruction been given, the result of his trial would have been different. c. This court declined to review the petitioner’s claim that his appellate counsel was ineffective for not having asserted that the trial court improperly failed to give the jury an instruction on true threats as to the charge under § 53a-181 (a) (3): the petitioner’s claim was not properly before this court, as his habeas petition did not distinctly allege that claim, and that claim was not inextricably linked to the claim in the habeas petition that appellate counsel rendered ineffective assistance for having failed to challenge § 53a-181 (a) as facially overbroad and unconstitutionally vague as applied. 3. The petitioner’s claim that his trial counsel and appellate counsel rendered ineffective assistance for having failed to challenge the admission into
evidence of the petitioner’s blood test results was unavailing: a. There was no merit to the petitioner’s assertion that trial counsel was ineffective for having failed to pursue a motion to suppress the blood test results, which was based on the petitioner’s claim that the state failed to satisfy the statutory (§ 14-227a (k)) grounds for their admission into evidence; the petitioner’s position was contradicted by the record and his own admission that counsel pressed the trial court to preclude the blood test results pursuant to § 14-227a (k) and, although the court rejected counsel’s claim that § 14-227a (k) was the exclusive method for the admission of the blood test results in a prosecution under § 14- 227a, counsel’s unsuccessful attempt to convince the court did not constitute deficient performance. b. Appellate counsel’s decision not to challenge the admission into evidence of the results of the petitioner’s blood tests was sound strategy, and the petitioner failed to prove that he was prejudiced by that decision: counsel was not deficient in choosing not to challenge the admission of the bloоd test results under § 14-227a (k), as he cited case law that a failure to satisfy the requirements of § 14-227a (k) did not foreclose the admission of blood test results under § 14-227a, and case law at the time of the petitioner’s direct appeal supported counsel’s view that the absence of facts about the hospital’s decision to take a blood sample from the petitioner made a fourth amendment claim difficult; moreover, there was an absence of evidence during the habeas trial that the petition- er’s claim would have succeeded, as there was little to suggest that the petitioner’s transfer to and treatment at the hospital was a pretext to gather evidence against him, there was no evidence that the police requested that the hospital draw the petitioner’s blood, and a vast amount of evidence suggested that the request by the police that the petitioner be taken to the hospital was based on a genuine concern for his health. Argued December 4, 2019—officially released June 23, 2020
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, Hon. Edward J. Mullar- key , judge trial referee; judgment denying the petition, from which, the petitioner, on the granting of certifica- tion, appealed to this court. Affirmed .
Damian K. Gunningsmith , for the appellant (peti- tioner).
Rocco A. Chiarenza , assistant state’s attorney, with whom, on the brief, were Gail P. Hardy , state’s attor- ney, and Jo Anne Sulik , supervisory assistant state’s *4 attorney, for the appellee (respondent).
Opinion 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 unconstitu- tionally 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 con- viction, 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, testi- fied 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 immedi- ately 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 [petitiоner] bang on his car’s window several times, yell and then walk away. Jarmoszko later heard the *6 engine of the [petitioner’s] truck start.
‘‘Shortly afterward, Michael Magrey, a Manchester police officer, was dispatched to the scene of the acci- dent. 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 individ- ual 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 treat- ment. 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 con- tent of 0.165. The [рetitioner] 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] fur- ther 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 informa-
tion, 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
*7
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.’’ (Footnotes omitted; footnote added.)
Davis
,
Following an unsuccessful direct appeal of his con- viction, 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. Cash- man, and one сount of ineffective assistance of appel- late 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 ren- dered 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 find-
ings 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 Commissioner of Correc-
tion
,
‘‘The sixth amendment to the United States constitu-
tion 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
*8
omitted.)
Ledbetter
v.
Commissioner of Correction
, 275
Conn. 451, 458,
‘‘We .
.
. are mindful that [a] fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s per-
spective 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 [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy. . . . [C]ounsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment. . . . Similarly,
the United States Supreme Court has emphasized that
a reviewing court is required not simply to give [coun-
sel] the benefit of the doubt . . . but to affirmatively
entertain the range of possible reasons . . . counsel
may have had for proceeding as [he or she] did. (Cita-
tions omitted;
internal quotation marks omitted.)
Ricardo R
. v.
Commissioner of Correction
, 185 Conn.
App. 787, 796–97,
‘‘In assessing prejudice under
Strickland
, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead,
Strick-
land
asks whether it is reasonably likely the result
would have been different. . . . The likelihood of a
different result must be substantial, not just conceiv-
able.’’ (Internal quotation marks omitted.)
Skakel
v.
,
The two-pronged test set forth in
Strickland
equally
applies to claims of ineffective assistance оf appellate
counsel. See
Camacho Commissioner of Correction
,
I The petitioner first claims that both trial and appellate counsel rendered ineffective assistance by failing to challenge our bribery statute, § 53a-149, [2] as unconstitu- tionally overbroad on its face. According to the peti- tioner, effective counsel would have recognized that § 53a-149 was susceptible to an overbreadth challenge because it arguably could encompass legal activity— specifically, civil settlement negotiations. We disagree.
The following additional facts are relevant to the resolution of this claim. During the petitioner’s criminal trial, Cashman elicited testimony from Jarmoszko on cross-examination that Jarmoszko believed the peti- tioner’s offer was an attempt to settle a property damage *10 claim. According to Jarmoszko, he did not believe that the offer was enough to settle that claim. In his closing argument to the jury, Cashman argued that the case was not about bribery but, instead, concerned a property damage claim related to a motor vehicle accident. Cash- man also asserted that, if the petitioner’s offer to Jar- moszko constituted a bribe under § 53a-149, every insur- ance claim that is settled out of court also would fall under that statute.
In its charge concerning bribery, the court instructed the jury on the definitions of ‘‘witness’’ and ‘‘official proceeding’’ under the factual circumstances as fol- lows: ‘‘[I]n this case, the state alleges that [Jarmoszko] was to be a witness in one or more criminal proceedings that could arise out of the incident on November 20, 2010.’’
In the petitioner’s direct appeal, Billings argued that the bribery statute was unconstitutionally vague as applied to the petitioner. Specifically, Billings argued in his appellate brief that the terms ‘‘witness’’ and ‘‘official proceeding’’ encompass ‘‘such a wide range of time, people and activity that it is impossible to know that the conduct in this case would constitute a violation of § 53a-149.’’ After outlining the statutory definitions and related case law, Billings argued that ‘‘[n]either the statutory language nor the tangentially related case precedent demonstrates any expectation that a prose- cution for bribery of a witness would arise from the facts of this case.’’
During the habeas trial, Cashman and Billings both testified about their tactics in defending against the bribery charge. For instance, Cashman testified to his belief that the best defense was to argue to the jury that the bribery statute was inapplicable to the petitioner’s situation. According to Cashman, his theory was that the petitioner was merely offering $200 to Jarmoszko for the damage the petitioner caused to his car. Cash- man testified that the crux of his argument was that the petitioner’s offer of money to Jarmoszko was noth- ing more than an attempt to settle a civil matter, and, thus, the jury would find that the bribery statute did not encompass the petitioner’s conduct. Billings testified in a similar vein, stating that, although he understood the difference between an overbreadth challenge and a vagueness challenge, he did not view the circum- stances as implicating the first amendment. Instead, Billings believed that the issue concerned how a com- mon person in society would not view the petitioner’s conduct as rising to the level of bribery and that he therefore believed that attacking the statute as vague as applied to the petitioner was the most promising claim.
In its memorandum of decision, the habeas court found no merit in the petitioner’s claim that failing to challenge § 53a-149 as facially overbroad constituted ineffective assistance of counsel. It found that, with *11 respect to appellate counsel, Billings had ‘‘employed well reasoned and researched lines of argument.’’ Spe- cifically, the court noted that Billings, ‘‘[acting] within his discretion, selected claims to raise on appeal and the lack of success on appeal, or not raising more or different claims, does not prove ineffective assistance.’’ [4]
A
We agree with the habeas court’s conclusion that the
petitioner’s claim with respect to trial counsel is without
merit due to his failure to establish prejudice. See foot-
note 4 of this opinion. According to the petitioner, trial
counsel’s assistance was deficient for failing to raise a
theory or claim that was untested in our courts. In other
words, the petitioner takes issue with his counsel’s fail-
ure to assert a novel theory that has neither been pre-
sented to, nor accepted by, the courts of this state.
As our Supreme Court has held, ‘‘counsel’s failure to
advance novel legal theories or arguments does not
constitute ineffective performance.’’
Ledbetter Com-
missioner of Correction
, supra,
The petitioner nevertheless argues that, because
Cashman acknowledged that his theory of defense
could be interpreted as an overbreadth challenge to the
bribery statute, Cashman rendered ineffective assis-
tance by making that argument to the jury. According
to the petitioner, the jury ‘‘was indisputably the wrong
audience for such a legal argument,’’ and, instead, Cash-
man should have made that argument to the trial court.
We reject that assertion. Whether the trial court was
the correct audience does nothing to vitiate our law
governing claims of ineffective assistance of counsel
for a failure to assert novel legal theories. See
Ledbetter
, supra,
More importantly, our conclusion rests on the legal
principle that, in order to satisfy the prejudice prong
under
Strickland
, the petitioner must do more than
proffer a speculative outcome. See
Santos Commis-
sioner of Correction
,
B The petitioner’s claim as to appellate counsel is like- wise without merit. As discussed previously, Billings, as appellate counsel, could not render ineffective assis- tance by failing to advance a novel constitutional claim. See id., 461. Because challenging the bribery statute as unconstitutionally overbroad was just as novel of a theory on appeal as it was at the petitioner’s criminal trial, his claim of ineffective assistance as to Billings fails for the same reason.
Moreover, Billings testified during the habeas trial
that he did not view the case as implicating the first
amendment. See
Chicago Morales
,
Consistent with that conclusion, we emphasize that
Billings was not obligated to raise every conceivable
*13
claim in the petitioner’s direct appeal. See
Camacho
v.
Commissioner of Correction
, supra, 148 Conn. App.
495. It is clear that Billings pursued thе three claims
he believed to be the strongest available on the basis
of his review of the law and trial record. We will not
question the tactical decision of appellate counsel with
the benefit of hindsight. See
Smith Commissioner
of Correction
,
II The petitioner next claims that both trial and appel- late counsel provided ineffective assistance by failing to request at trial and to argue on direct appeal, respec- tively, that the trial court should have given the jury a ‘‘true threats’’ instruction with respect to the breach of the peace charge under § 53a-181 (a) (3). [6] He further asserts that, because his speech did not constitute a true threat, it is reasonably probable that the result of his trial would have been different had an instruction been given or if the instructional issue had been argued on appeal. In response, the respondent, the Commis- sioner of Correction, points to procedural infirmities with respect to the petitioner’s claim as to both trial and appellate counsel. He further argues that, even assuming the claim was properly preserved, any claim of ineffectiveness is meritless because both Cashman and Billings recognized that the breach of the peace charge was not based solely on the petitioner’s speech. Accordingly, the respondent posits that both trial and appellate counsel reasonably concluded that no basis existed to request a first amendment instruction with respect to the breach of the peace charge.
Before addressing these respective arguments, we first note certain additional procedural facts that are relevant to the petitioner’s claim. During the petitioner’s criminal triаl and outside the presence of the jury, both Cashman and the prosecutor clarified that the threaten- ing charge concerned threats the petitioner made against Jarmoszko. They further agreed that the breach of the peace charge was premised on the theory that the petitioner threatened to commit an assault on Jar- moszko. Shortly thereafter, Cashman moved for a judg- ment of acquittal as to the threatening charge. Cashman argued that ‘‘the only evidence in the record that would conceivably constitute the threat [of an assault] was *14 the statement, ‘let’s settle this like men.’ . . . Those words alone clearly do not constitute a threat. And, more specifically, not only would there have to be a threat, but there would have to be the belief that there was imminent serious physical injury.’’ The court agreed and found that no jury could reach a guilty verdict on the basis of the evidence. The court explained that the words, ‘‘why don’t we settle this like men . . . are clearly not sufficient to constitute a physical threat. There was no action. . . . There’s no evidence to sup- port that [the petitioner] intended to place [Jarmoszko] in fear of serious physical injury.’’ The court thereafter granted the petitioner’s motion for a judgment of acquit- tal on the threatening charge.
Immediately thereafter, Cashman moved for a judg- ment of acquittal on the breach of the peace charge on the basis of the same reasoning. Cashman argued that, on the basis of the court’s finding that the words, ‘‘let’s settle [it] like men,’’ were insufficient to constitute a threat, there was insufficient evidence to establish that the petitioner threatened to commit a crime against Jarmoszko under § 53a-181 (a) (3). In denying the motion, the court noted that, ‘‘unlike the threatening statute, [the breach of the peace] statute says [that] a person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, he threat- ens to commit any crime against another person. And [the] defense is quite correct, when, certainly, you can read the statement ‘settle it like men’ as an intent to engage in a fight, [and] therefore, commit the crime of assault.’’ The court then denied the motion to dismiss the breach of the peace charge.
At the petitioner’s habeas trial, Cashman testified that, in his judgment, the breach of the peace charge was not predicated solely on words but instead con- cerned the overall conduct of the petitioner. According to Cashman, the issue of ‘‘true threats’’ or ‘‘fighting words’’ with respect to the breach of the peace charge was irrelevant because the charge itself encompassed conduct that went beyond words and, thus, did not implicate the first amendment. With respect to appellate counsel, Billings testified that he did not believe chal- lenging the breach of the peace charge on appeal would have been successful. He echoed the reasoning of Cash- man, stating that the breach of the peace charge was not necessarily based on the petitioner’s speech. Billings further testified that he believed that bringing such a claim on appeal would have taken away from the brib- ery claim, which he believed to be the strongest appel- late claim. The petitioner’s expert witness, Attorney Jeffrey C. Kestenband, testified that, in his opinion, Cashman violated the standard of care by failing to request a jury instruction on the meaning of true threats with respect to the breach of the peace charge. [9]
In its memorandum of decision, the habeas court *15 found that, even if Cashman’s performance was defi- cient for failing to request a jury instruction on true threats, the petitioner’s language constituted ‘‘fighting words.’’ In reaching that conclusion, the habeas court noted: (1) while Jarmoszko was stopped at a traffic signal, his vehicle was struck by the petitioner’s vehicle; (2) after Jarmoszko rejected the petitioner’s offer of $200 to forget about the incident, the petitioner— approximately six feet, two inches, tall and 230 pounds—became agitated, offering to fight Jarmoszko by saying, ‘‘ ‘[w]hy don’t we pull over to the side and settle it like men’ ’’; (3) Jarmoszko believed that the рetitioner wanted to fight him; (4) Jarmoszko became afraid that he might be assaulted and therefore returned to his vehicle to call the police; (5) the petitioner approached Jarmoszko’s vehicle, banged on the win- dow, and made unintelligible statements to Jarmoszko; and (6) Jarmoszko became concerned for his safety and called the police a second time.
With respect to appellate counsel, the court found Billings credible in his approach and diligent in bringing the petitioner’s appeal. The court reiterated its finding that the petitioner had used ‘‘ ‘fighting words,’ ’’ which were the predicate for the breach of the peace charge. It further noted that attacking the six month sentence on the breach of the peace conviction would have been of little value. It highlighted the fact that the six month sentence on the conviction was concurrent with a one year sentence for interfering with the police.
A We first address the petitioner’s claim with respect to his trial counsel. On appeal, the petitioner argues that Cashman’s failure to ask for a jury instruction on ‘‘true threats’’ for the breach of the peace charge consti- tuted deficient performance and prejudiced him. Specif- ically, he contends that, in the absence of a judicial gloss rendering § 53a-181 (a) as applicable only to ‘‘true threats,’’ the breach of the peace statute is unconstitu- tionally overbroad. The petitioner further asserts that, because the charge was predicated in substance on his speech, the jury should have been instructed on true threats as an element of the charge to narrow the scope of § 53a-181 (a) (3). He claims that, if such an instruction had been provided, it is reasonably likely that the ver- dict would have been different because the speech at issue did not constitute a true threat.
1 Before turning to the merits of that claim, we first address the respondent’s argument that this claim is not properly before this court. The respondent argues that the petitioner failed to challenge the basis on whiсh the habeas court rejected his claim, specifically, in find- ing that the petitioner’s speech constituted fighting words. We disagree.
In its memorandum of decision, the habeas court
reasoned that, even assuming that the first amendment
was implicated and that trial counsel requested a true
threats jury instruction with respect to the breach of
the peace charge, the petitioner’s speech amounted to
fighting words. Thus, because fighting words are out-
side the protection of the first amendment and may be
criminalized under the breach of the peace statute; see
DeLoreto
,
In his principal brief to this court, the petitioner explicitly challenges the habeas court’s determination that he ‘‘was not prejudiced because his speech consti- tuted fighting words under the circumstances’’ by arguing that such a determination ignored the state’s theory as actually presented to the jury. Thus, we con- clude that the petitioner’s claim as to trial counsel is properly before this court.
2 Having determined that this claim is properly before us, we now address its merits. As discussed in footnote 4 of this opinion, the habeas court appears to have addressed this claim—along with two others—by dis- posing of it under the prejudice prong of Strickland . We further note that both parties read the court’s deci- sion as rejecting the claim on the basis of the petitioner’s failure to prove prejudice. Nowhere in its memorandum of decision did the court make any factual findings with respect to the performance prong. Therefore, our analysis is confined to whether the court properly deter- mined that the petitioner failed to prove prejudice. See Small , supra, 286 Conn. 716 (‘‘[w]hen the record on appeal is devoid of factual findings by the habeas court as to the performance of counsel, it is improper for an appellate court to make its own factual findings’’). We conclude that the court properly did so. [10]
Our Supreme Court has explained that ‘‘unless a judi-
cial gloss is рlaced on § 53a-181 (a) (3) requiring proof
that the allegedly threatening conduct at issue consti-
tuted a true threat, the statute would be overbroad
because it could be applied to punish expressive con-
duct protected by the first amendment. . . . Further-
more, in accordance with the purpose underlying this
judicial gloss, a defendant whose alleged threats form
the basis of a prosecution under any provision of our
Penal Code, including § 53a-181 (a) (3), is entitled to
an instruction that he could be convicted as charged
only if his statements . . . constituted a true threat,
that is, a threat that would be viewed by a reasonable
person as one that would be understood by the person
against whom it was directed as a serious expression
*17
of an intent to harm or assault, and not as mere puffery,
bluster, jest or hyperbole.’’ (Citation omitted; internal
quotation marks omitted.)
State
v.
Moulton
, 310 Conn.
337, 367–68,
With these legal principles in mind, however, we reit-
erate that the prevailing question under
Strickland
’s
prejudice prong ‘‘is whether there is a reasonable proba-
bility that, absent the errors, the [fact finder] would
have had a reasonable doubt respecting guilt.’’ (Internal
quotation marks omitted.)
Skakel
v.
Commissioner of
Correction
, supra,
To begin, we note that the first amendment is not
implicated when a breach of the peace charge is predi-
cated on conduct rather than speech. See
State
v.
Sim-
mons
,
If, however, speech is the focus of the charge, our
analysis of whether that speech constitutes a proscriba-
*18
ble threat is informed by the attendant circumstances.
‘‘Indeed . . . rigid adherence to the literal meaning of
a communication without regard to its reasonable con-
notations derived from its ambience would render [stat-
utes proscribing true threats] powerless against the
ingenuity of threateners who can instill in the victim’s
mind as clear an apprehension of impending injury by
an implied menace as by a literal threat. . . . Thus, a
determination of what a defendant actually said is just
the beginning of a threats analysis. Even when words
are threatening on their face, careful attention must be
paid to the context in which those statements are made
to determine if the words may be objectively perceived
as threatening.’’ (Citation omitted; internal quotation
marks omitted.)
State
v.
Krijger
,
On our review of the record, we do not believe the
first amendment is implicated in the present case
‘‘because the defendant’s conduct did not consist purely
of speech.’’
State Andriulaitis
,
In our view, it was the petitioner’s conduct, and not
his speech, that constituted the alleged threat to commit
an assault on Jarmoszko. Specifically, Jarmoszko testi-
fied that it was his fear of what ‘‘ ‘the [petitioner] was
doing,’ ’’ not what the petitioner said, that caused him
to contact the police a second time. See
Andriu-
laitis
, supra,
We are mindful that the petitioner’s statement, ‘‘ ‘[w]hy don’t we . . . settle it like men,’ ’’ was a com- ponent of the course of conduct at issue in the underly- ing criminal case. See Davis , supra, 160 Conn. App. 255. Although the petitioner argues that this state- ment was the basis for the breach of the peace charge, the record does not provide support for that assertion. In light of our determination, we again emphasize that it was the petitioner’s burden to establish that, had the trial court provided a true threats instruction, it is reasonably likely that the jury’s guilty verdict on the breach of the peace charge would have been different. See Hickey , supra, 329 Conn. 619–20. Because the petitioner’s conduct was the predicate for the alleged threat made to Jarmoszko, the first amendment was not implicated, and, as a result, there was no need for a true threats instruction. There- fore, the petitioner has failed to establish the requisite prejudice, and, thus, he cannot succeed on his claim of ineffective assistance. [14]
B We now turn to the petitioner’s claims against his appellate counsel. The petitioner claims that Billings rendered ineffective assistance because, given the trial court’s ruling that the petitioner’s speech did not consti- tute a threat, it is reasonably probable that this court would have concluded that the instructional error was not harmless beyond a reasonable doubt. The petitioner rests his claim on two interrelated arguments. First, *20 he argues that the breach of the peace charge was predicated on the allegation that the petitioner’s speech constituted a true threat toward Jarmoszko. Second, because the trial court determined that the petitioner’s speech was insufficient for the threatening charge, there is a reasonable probability that this court would have concluded that such speech was not a ‘‘true threat’’ for purposes of the breach of the peace charge. The respondent, however, argues that this claim is unpre- served because it was not raised in the operative peti- tion. The respondent notes that the only claim of inef- fective assistance of appellate counsel that relates to the breach of the peace charge concerns counsel’s failure to challenge the breach of the peace statute as facially overbroad and vague as applied. The respondent further asserts that, even ignoring the preservation issue, the basis of the breach of the peace charge was not limited solely to speech but, rather, to the petitioner’s overall conduct. Thus, according to the respondent, Billings was well within the bounds of reasonable professional judgment when he concluded that there was no basis to raise that argument on appeal. We agree with the respondent that this claim is not properly before us and, therefore, do not reach its merits.
The respondent correctly notes that the petitioner’s only claim of ineffective assistance of appellate counsel concerning the breach of the peace charge was Billings’ failure to challenge the statute as facially overbroad and unconstitutionally vague as applied. In his reply brief to this court, the petitioner responds that, pursuant to DeLoreto , the breach of the peace statute is unconsti- tutionally overbroad in the absence of a judicial gloss limiting its application to true threats. According to the petitioner, because the breach of the peace statute could be overbroad in the absence of a judicial gloss, a claim challenging the statute as overbroad is equiva- lent to a claim of instructional error. Thus, the peti- tioner argues that the claims of ineffective assistance for failure to raise instructional error on appeal and failure to challenge the statute as facially overbroad are ‘‘two sides of the same coin.’’
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . It is fundamental in our law that the right
of [the petitioner] to recover is limited to the allegations
of his complaint. . . . While the habeas court has con-
siderable discretion to frame a remedy that is commen-
surate with the scope of the established constitutional
violations . . . it does not have the discretion to look
beyond the pleadings and trial evidence to decide claims
not raised.
.
.
. [T]he [petition] must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.’’
(Internal quotation marks omitted.)
Newland Com-
*21
missioner of Correction
,
We are further cognizant that one claim—despite not
having been explicitly raised in a petition for a writ of
habeas corpus—can be so interrelated with another
that distinguishing between the two is meaningless. See
Johnson
,
In Johnson , our Supreme Court determined that the petitioner distinctly raised a claim of ineffective assis- tance for his counsel’s inadequate investigation of alibi witnеsses despite the absence of such language in his petition. Id., 540–41. In reaching that conclusion, the court acknowledged that the petition phrased the claim at issue as counsel’s failure to prepare and present the testimony of two witnesses relevant to the alibi defense. Id., 540. Despite this difference in framing, the court emphasized that the subject matter of defense counsel’s investigation into the alibi defense was extensively liti- gated during the habeas trial. Id., 541. Specifically, it highlighted that both parties questioned defense coun- sel about the investigative efforts into the alibi defense and framed the issue in their posttrial briefs as defense counsel’s failure to investigate the alibi witnesses to present such a defense. It further noted that ‘‘[t]he respondent never objected to the petitioner’s argument that his claim of failure to present the alibi defense was premised on defense counsel’s failure to adequately investigate the defense.’’ Id. In evaluating the alleged differences between the two claims, the court saw ‘‘no meaningful distinction between the phrases ‘failure to prepare and present’ and ‘failure to investigate and pres- ent’ that renders the investigation portion of this claim unpreserved. ‘Preparation’ necessarily includes ‘investi- gation.’ ’’ Id. Not only did the court believe that the two claims were ‘‘inextricably linked,’’ but it further highlighted the fact that the habeas court understood that one claim necessarily included the other. Id., 542.
Under the present circumstances, however, the peti-
tioner’s claim as to appellate counsel was not distinctly
raised, nor is it inextricably linked to the claim alleged
in the petition. In reaching that determination, we
acknowledge
DeLoreto
’s holding that, in the absence
of a judicial gloss interpreting § 53a-181 (a) as applying
only to true threats, the statute could be construed as
unconstitutionally overbroad.
DeLoreto
, supra,
*22
To begin, there is no dispute that the underlying peti-
tion does not assert a claim that appellate counsel ren-
dered ineffective performance for failing to challenge
the trial court’s jury instructions on the breach of the
peace charge. Rather, the only claims asserted against
appellate counsel concerning that charge revolve
around Billings’ failure to challenge § 53a-181 (a) as
facially overbroad and vague as applied. Our courts
have consistently held that a claim challenging a jury
instruction is preserved only if (1) a written request to
charge covering the specific matter was submitted to
the court or (2) a party takes exception to the charge
as given. See, e.g.,
State King
,
Instead, a fair reading of the operative petition indi- cates that the petitioner alleged against trial counsel only the failure to raise the jury instructional issue. Unlike its allegations concerning appellate counsel, the petition alleges distinct ineffective assistance claims against trial counsel for his failure to challenge § 53a- 181 (a) as unconstitutionally overbroad and his failure to request a ‘‘fighting words’’ jury instruction. See foot- note 10 of this opinion. That this distinction was made as to trial counsel, and not as to appellate counsel, undermines the petitioner’s argument that the two claims are essentially the same.
Moreover, the record reflects that the circumstances
in the present case are readily distinguishable from
those that were highlighted by the court in
Johnson
.
Neither party here explicitly or extensively questioned
Billings during the habeas trial about his failure to raise
the issue of jury instructions on appeal. Cf.
Johnson
Commissioner of Correction
, supra,
We acknowledge that a failure to apply a judicial
gloss to the breach of the peace statute may render
that statute unconstitutional if the charge is predicated
on speech. See
DeLoreto
, supra,
In sum, the petition does not state a claim that appel- late counsel was ineffective for failing to raise on appeal the trial court’s failure to instruct the jury regarding true threats for the breach of the peace charge. As discussed, that claim is not inextricably linked to the claim that was asserted in the habeas petition—that Billings rendered ineffective assistance for his failure to challenge § 53a-181 (a) as facially overbroad and vague as applied. Accordingly, the petitioner’s claim of ineffective assistance as to Billings’ failure to raise a claim of instructional error on direct appeal is not prop- erly before this court. We thus decline to review the merits of that claim. [17]
III The petitioner’s final claim of ineffective assistance concerns the failure of both trial and appellate counsel to challenge the admission of the petitioner’s blood test results into evidence. According to the petitioner, because the manner in which his blood was taken alleg- edly did not satisfy the requirements of § 14-227a (k), [18] *24 his trial counsel should have pursued a motion to sup- press the results. The petitioner similarly argues that, because the issue of admissibility was preserved, appel- late counsel rendered ineffective assistance by failing to raise that issue on appeal. We disagree.
The following additional undisputed facts are rele- vant to this claim. After the petitioner was discharged from the hospital following the November 20, 2010 inci- dent, his medical records—including the results of the blood tests that were done during his stay—were obtained pursuant to a search warrant by the Manches- ter Police Department. At the petitioner’s criminal trial, Cashman sought to have the petitioner’s blood test results precluded from being admitted into evidence. In doing so, Cashman argued to the court that the admis- sibility of any blood test results of the petitioner was governed exclusively by § 14-227a in a prosecution for operation of a motor vehicle while under the influence of intoxicating liquor or drugs. Cashman noted that, under the requirements of § 14-227a (k), the results of a test on a blood sample can be admitted only if the sample was taken for the purpose of diagnosis or treat- ment of a physical injury that resulted from a motor vehicle accident. Cashman argued that, because there was no evidence that the blood sample was taken for the purpose of treating an injury, the blood test results were therefore inadmissible. The court agreed that § 14- 227a (k) requires that, for the results of a test on a blood sample to be admissible, the blood sample must have been taken because the operator of the motor vehicle sustained physical injury during a motor vehicle accident. It disagreed, however, that § 14-227a is the exclusive method to have such evidence admitted. Rather, it concluded that there was nothing to prohibit the state ‘‘from seeking to utilize common-law rules of evidence in order to have such [blood sample] report introduced into evidence.’’ The court also emphasized that, although it was not ruling that the blood test results were admissible at that point, it did not agree with Cashman’s argument that § 14-227a was the only proce- dural vehicle for the admission of the results into evidence. [20]
During the habeas trial, Cashman testified that, although previous counsel had filed a motion to sup- press the blood test results on constitutional grounds, he believed that the best chance for success was to challenge their admission for failure to comply with § 14-227a (k). In defending against the charge brought under § 14-227a (a), Cashman believed there was a ‘‘very good opportunity to keep out the blood evidence’’ by arguing that the state did not satisfy the requirements under subsection (k) of that statute. Cashman further stated that, on the basis of his review of the medical records and the police report, the best chance for pre- venting the admission of the blood test results was to avoid the constitutional issues and to seek preclusion *25 on statutory grounds.
Billings also provided testimony at the habeas trial concerning his reasons for not challenging the admis- sion of the blood test results. In his view, thе results were admitted under common-law rules of evidence, not under § 14-227a (k). In preparing the petitioner’s direct appeal, he did not believe that the fourth amend- ment was implicated on the basis of the case law governing such claims related to an unlawful seizure of blood. Additionally, Billings highlighted the lack of a suppression hearing at the trial level, which would have provided factual findings, thereby making a fourth amendment claim difficult. On the basis of his review of the record, Billings did not believe that he could make a strong fourth amendment claim on appeal.
In its memorandum of decision, the habeas court agreed with counsel’s reasoning. It found that Cashman properly lodged an objection to the admission of the blood test results under § 14-227a, which was not sus- tained. The court rejected Kestenband’s testimony that a motion to suppress should have been pursued because the blood sample was taken in violation of the fourth amendment. It further credited certain testimony given by Andrew Hedberg, the responding emergency medical technician, and Magrey at the petitioner’s criminal trial. Specifically, the court highlighted the fact that Hedberg ‘‘found the petitioner standing in a boat, soaking wet, loud and combative with [the] police. Subsequently, he smelled a strong odor of alcohol on the petitioner’s breath, stable vitals but elevated blood pressure, and spitting. He was told by [the] police to transport the petitioner and placed a mask over his spitting mouth.’’ The court also emphasized that Hedberg ‘‘did not testify that he saw no reason to transport.’’ The court also credited Magrey’s testimony that, although he was unsure whether the petitioner was in a ‘‘ ‘medical condi- tion’,’’ his skin was cold, soaking wet, and had turned either blue or purple. Magrey further stated that the petitioner was at first unresponsive and became ‘‘unre- strained emotionally’’ as he struggled with police offi- cers and ambulance personnel. Magrey also testified that he was aware that the petitioner had fallen into the Connecticut River earlier that day. According to the court, with respect to the transport of the petitioner to the hospital, ‘‘[f]or the police to have done otherwise would have been a dereliction of their duties.’’ (Internal quotation marks omitted.)
In reaching that conclusion, the court found that the petitioner’s blood was not drawn at the request of the police. It noted that, according to the medical record, the petitioner was assessed as ‘‘intoxicated, agitated, and cold, some history was obtained from the petition- er’s wife, including a recent occurrence of falling. After sedation with Haldol and Activan, the petitioner was placed in a ‘monitored’ bed until he could be psychiatri- *26 cally assessed. The petitioner was transferred to a regu- lar bed and not discharged until 1:38 p.m. the next day after receiving another Haldol injection and a saline IV.’’ Thus, the court concluded that ‘‘[n]o evidence is contained in the [medical records] exhibit or elsewhere that the police requested a blood test, but a great deal of evidence exists that one was medically necessary due to the petitioner’s physical and emotional condition requiring sedation.’’ For the same reasons, the court concluded that Billings did not render ineffective assis- tance for failing to challenge the admission of the results on appeal. It further concluded that the petitioner ‘‘failed to call [Hedberg] or any of the hospital medical staff to counter the strong evidence of medical neces- sity,’’ thereby failing to establish prejudice.
A We find no merit to the petitioner’s claim that trial counsel rendered ineffective assistance for his failure ‘‘to pursue a motion to suppress the results of the peti- tioner’s blood test on the grounds that the state failed to satisfy its burden under [§ 14-227a (k)] . . . .’’ As the petitioner readily admits, Cashman pressed the court to preclude the blood test results from evidence on the ground that the state failed to satisfy the requirements of § 14-227a (k). Yet, according to the petitioner, Cash- man failed to adequately argue that the state did not satisfy its burden of establishing that the blood sample was taken for the purpose of treаting an injury sustained from the motor vehicle accident.
The petitioner’s position is readily contradicted by the record. In fact, Cashman purposefully argued to the trial court that § 14-227a (k) was the governing method by which such results could be admitted into evidence. In making that argument, Cashman asserted that the state ‘‘needs to satisfy the conditions precedent that the statute contemplates in order to successfully admit the results of a blood sample in a prosecution for operating under the influence.’’ The court agreed with Cashman that, under § 14-227a (k), the state would need to show that the petitioner’s injuries must have been both physical and a direct result of the motor vehicle accident. Although it acknowledged the absence of any evidence suggesting the petitioner’s injuries were sus- tained in the accident itself, the court rejected Cash- man’s argument that § 14-227a was the exclusive method for admitting blood test results. The petitioner may believe that Cashman did not adequately argue his position and should have continued to press the court to reconsider. Cashman’s unsuccessful attempt to con- vince the trial court, however, does not constitute defi- cient performance. [22]
B We now turn to the petitioner’s claims against his appellate counsel. We agree with the habeas court’s *27 conclusion that Billings was not deficient for failing to challenge the blood test results under the same legal theory argued by Cashman. The petitioner contends that Billings should have claimed that § 14-227a (k) was the exclusive procedural vehicle for admitting the results into evidence and that the state had failed to satisfy the requirements of that statute. He further appears to claim ineffective assistance by Billings for his failure to challenge the evidence on fourth amend- ment grounds. We disagree.
The habeas court’s conclusion rejecting this claim finds ample support in the record. In his testimony during the habeas trial, Billings cited a number of rea- sons for his decision not to challenge the admission of the blood test results into evidence. One of the reasons consisted of his disagreement with Cashman thаt § 14- 227a (k) controlled the admission of the results. In elaborating on that disagreement, Billings cited to Kirsch for the proposition that the state’s failure to satisfy the statute’s requirements does not foreclose it from introducing blood test results into evidence by different means. Additionally, Billings did not believe that challenging the blood test results on fourth amend- ment grounds would have proven successful because, on the basis of his review of the record, a hospital may draw blood for the purpose of treatment. In his view, the factual circumstances of the petitioner’s case—in the absence of any additional underlying facts about the hospital’s decision to take the petitioner’s blood sample—made the chances for a fourth amendment claim difficult in light of existing legal precedent.
The relevant case law provides ample support for
those concerns. Indeed, our courts have held that the
state’s failure to satisfy all of the requirements under
§ 14-227a ‘‘does not . . . proscribe the admission of
evidence that fails to satisfy [its requirements].’’
State
Kirsch
, supra,
Moreover, existing case law at the time of the peti-
tioner’s direct appeal supports Billings’ belief that the
facts underlying the blood draw by the hospital ren-
dered it constitutionally permissible. As reaffirmed by
the United States Supreme Court in
Missouri
v.
McNeely
,
In the present case, the habeas court found that the
petitioner’s general state of well-being was a primary
concern of Magrey after he noticed that the petitioner
was soaking wet and that the petitioner’s skin had
turned to either a blue or purple color. Magrey was
unsure whether the petitioner was in a ‘‘ ‘medical condi-
tion’ ’’ but was clearly concerned that the petitioner
was initially unresponsive and, knowing that the peti-
tioner had fallen into the Connecticut River earlier that
day, appeared to be heavily intoxicated. The court also
found that the police officers told Hedberg to transport
the petitioner to the hospital. There was no evidence,
however, that this request was a pretext for having the
petitioner’s blood drawn by the hospital for the purpose
of gathering inculpatory evidence. See
Petruz-
zelli
, supra,
We further agree with the court’s conclusion that the
petitioner failed to establish prejudice in light of the
absence of any evidence proffered during the habeas
trial that there was a reasonable likelihood of this claim
succeeding on appeal. As indicated before, there is little
to suggest that the petitioner’s transfer to and treatment
by the hospital was a pretext for gathering evidence to
be used against him, nor is there evidence to indicate
that the police requested the hospital to draw the peti-
tioner’s blood. See
Skinner Railway Labor Execu-
tives’ Assn.
, supra,
In light of that conclusion, it follows that the petition-
er’s claim of ineffective assistance of appellate counsel
must fail. Billings’ decision not to challenge the admis-
sion of the blood test results was sound appellate strat-
egy that was based on his reasons for avoiding that
issue. See
Salters
, 175
Conn. App. 807, 831,
The judgment is affirmed.
In this opinion the other judges concurred.
the threatening count.
[1]
The court granted the petitioner’s motion for a judgment of acquittal on
guilty of bribery of a witness if he offers, confers or agrees to confer upon
[2]
General Statutes § 53a-149 provides in relevant part: ‘‘(a) A person is
a witness any benefit to influence the testimony or conduct of such witness
in, or in relation to, an official proceeding. . . .’’
[3]
For clarity, we address each claim in turn concerning both trial and
appellate counsel.
We note that the court did not provide any articulation or discussion
in rejecting the petitioner’s claim that
trial counsel
rendered ineffective
assistancе for failing to challenge the bribery statute as overbroad. Rather,
the court merely acknowledged that claim, along with the claim that trial
counsel was deficient for failing to challenge the breach of the peace statute
as both unconstitutionally vague and overbroad—a claim that is not the
subject of this appeal—by referencing the relevant paragraphs in the habeas
petition. The court framed those claims in tandem as ‘‘a failure to attack
the constitutionality of the bribery and breach of the peace statutes on their
faces.’’ The court then noted the petitioner’s claim of ineffective assistance
of trial counsel for failing to request a jury instruction on the petitioner’s
speech or to take an exception to the court’s instruction because his speech
‘‘could not constitute a basis for a breach of peace unless it constituted
‘‘fighting words.’’ In rejecting these challenges, the court concluded that
attacking the statutes as vague would have proven meritless. It further
concluded that the petitioner’s conduct constituted fighting words. See part
II of this opinion. Furthermore, the court did not articulate whether its
finding that the petitioner used fighting words concerned the deficient per-
formance prong or the prejudice prong of
Strickland
.
Neither party has brought this issue to our attention, nor has either party
asserted that the court failed to make a determination on the petitioner’s
claim. Furthermore, there is no dispute that the court denied the petitioner’s
habeas petition in its entirety. ‘‘[T]o the extent that the trial court’s memoran-
dum of decision may be viewed as ambiguous in this respect, we read an
ambiguous record, in the absence of a motion for articulation, to support
rather than to undermine the judgment.’’
Water Street Associates Ltd. Part-
nership Innopak Plastics Corp
.,
On our review of the record before us, we conclude that the court implicitly
rejected the petitioner’s claim under the prejudice prong when it determined
that attacking the bribery statute on vagueness grounds would have been
meritless. As noted previously, the court’s conclusion was made in the same
paragraph and immediately after it acknowledged the petitioner’s claim
concerning trial counsel’s failure to challenge the bribery statute as unconsti-
tutional. See
Ricardo R
. v.
Commissioner of Correction
, supra, 185 Conn.
App. 789 n.1 (‘‘[a]lthough the habeas court did not explicitly address whether
the petitioner’s trial counsel had performed deficiently for not consulting
with an expert in preparation of the cross-examination . . . it is clear that
[it] implicitly rejected this claim when it determined that counsel had made
a sound, strategic decision not to hire an expert for the petitioner’s criminal
trial’’). Therefore, it appears that the court determined that the petitioner
failed to prove prejudice but did not articulate its basis for its conclusion.
Irrespective of that omission, we conclude that the record is adequate to
review the determination that the petitioner failed to establish prejudice
under
Strickland
. See
Small
v.
Commissioner of Correction
, supra, 286
Conn. 716–17.
[5]
We also are mindful that, in disposing of the petitioner’s direct appeal,
this court concluded that ‘‘a monetary offer, made with the intent of settling
a civil dispute should not, and in fact does not fall within the ambit of
§ 53a-149.’’
State
v.
Davis
, supra,