Davis v. Warden

Edward DAVIS (Inmate #106894) v. WARDEN

No. CV164008326S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

August 9, 2018

UNPUBLISHED OPINION

OPINION

Mullarkey, J.T.R.

The petitioner, Edward Davis, initiated the present matter by way of a petition for a writ of habeas corpus filed on September 6, 2016, and which was amended by counsel for the third time on November 16, 2017. The third amended petition raises claims in two counts: first, ineffective assistance of trial counsel, attorney Stephen F. Cashman; and second, ineffective assistance of appellate counsel, attorneys Peter G. Billings and Sean P. Barrett. The respondent’s return denies the petitioner’s material allegations and that he is entitled to habeas corpus relief.

The parties appeared before the court on March 20 and 26, 2018 for a trial on the merits. The petitioner testified and presented the testimony of his former trial counsel, attorney Cashman, his former appellate counsel, attorney Billings, and his expert witness, attorney Jeffrey Kestenband. The petitioner entered numerous documents into evidence consisting of transcripts, copies of court documents pleadings and briefs, as well as court decisions. The parties filed post-trial briefs. For the reasons articulated more fully below, the petitioner’s claims are denied.

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.

DISCUSSION

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...