Davis v. Commissioner of Correction

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EDWARD V. DAVIS v. 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 outcome 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-
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 blood 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
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 [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 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 [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] 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
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 sup-
port 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., 253–54.
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 count 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 v. Commissioner of Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012).
‘‘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
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 Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Strickland requires that a peti-
tioner satisfy both a performance and a prejudice prong.
To satisfy the performance prong, a claimant must dem-
onstrate that counsel made errors so serious that coun-
sel was not functioning as the counsel guaranteed . . .
by the [s]ixth [a]mendment. . . . To satisfy the preju-
dice prong, a claimant must demonstrate that there is
a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different. . . . Although a petitioner can
succeed only if he satisfies both prongs, a reviewing
court can find against the petitioner on either ground.’’
(Citations omitted; internal quotation marks omitted.)
Breton v. Commissioner of Correction, 325 Conn. 640,
668–69, 159 A.3d 1112 (2017).
‘‘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, 198 A.3d 630 (2018), cert. denied, 330
Conn. 959, 199 A.3d 560 (2019).
‘‘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.
Commissioner of Correction, 329 Conn. 1, 40, 188 A.3d
1 (2018). ‘‘In a habeas proceeding, the petitioner’s bur-
den of proving that a fundamental unfairness had been
done is not met by speculation . . . but by demonstra-
ble realities.’’ (Internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
834, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156
A.3d 536 (2017).
The two-pronged test set forth in Strickland equally
applies to claims of ineffective assistance of appellate
counsel. See Camacho v. Commissioner of Correction,
148 Conn. App. 488, 494–95, 84 A.3d 1246, cert. denied,
311 Conn. 937, 88 A.3d 1227 (2014). Although appellate
counsel must provide effective assistance, ‘‘he [or she]
is not under an obligation to raise every conceivable
issue. A brief that raises every colorable issue runs the
risk of burying good arguments . . . in a verbal mound
made up of strong and weak contentions. . . . Indeed,
[e]xperienced advocates since time beyond memory
have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one cen-
tral issue if possible, or at most on a few key issues. . . .
Most cases present only one, two, or three significant
questions. . . . The effect of adding weak arguments
will be to dilute the force of stronger ones. . . . Finally,
[i]f the issues not raised by his appellate counsel lack
merit, [the petitioner] cannot sustain even the first part
of this dual burden since the failure to pursue unmerito-
rious claims cannot be considered conduct falling
below the level of reasonably competent representa-
tion.’’ (Internal quotation marks omitted.) Id., 495. To
establish that the petitioner was prejudiced by appellate
counsel’s ineffective assistance, the petitioner must
show that, but for the ineffective assistance, ‘‘there is
a reasonable probability that, if the issue were brought
before us on direct appeal, the petitioner would have
prevailed. . . . To ascertain whether the petitioner can
demonstrate such a probability, we must consider the
merits of the underlying claim.’’ (Citation omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
728, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz,
555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
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.3 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
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
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 v. Com-
missioner of Correction, supra, 275 Conn. 461. ‘‘To
conclude that counsel is obligated to recognize and to
preserve previously undecided constitutional claims,
the viability of which is purely speculative, would be
to require criminal defense lawyers to possess a mea-
sure of clairvoyance that the sixth amendment surely
does not demand.’’ Id., 462. Thus, the failure of counsel
to pursue a novel constitutional argument does not
constitute ineffective assistance. See id., 457, 462 (coun-
sel did not render ineffective assistance by failing to
preserve novel argument that juvenile’s written confes-
sion, obtained without warning that juvenile might be
tried as adult, violated state constitution).
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
v. Commissioner of Correction, supra, 275 Conn. 461(‘‘while the failure to advance an established legal the-
ory may result in ineffective assistance of counsel under
Strickland, the failure to advance a novel theory never
will’’ (internal quotation marks omitted)). The peti-
tioner asks this court to rule that, even though failing
to raise a novel theory would not constitute ineffective
assistance under Strickland, counsel could render inef-
fective assistance by the manner in which he or she
argues that theory. Such a conclusion would produce
absurd results.
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 v. Commis-
sioner of Correction, 186 Conn. App. 107, 131, 198 A.3d
698 (‘‘[m]ere conjecture and speculation are not enough
to support a showing of prejudice’’ (internal quotation
marks omitted)), cert. denied, 330 Conn. 955, 197 A.3d
893 (2018). Consistent with that principle is the basis
on which our Supreme Court has rejected claims of
ineffective assistance for counsel’s failure to advance
novel legal theories: The chances of success are purely
speculative.5 See Ledbetter v. Commissioner of Correc-
tion, supra, 275 Conn. 462. The novelty of challenging
the bribery statute as facially overbroad is fatal to the
petitioner’s ability to establish prejudice, and we thus
reject this claim of ineffective assistance of trial
counsel.
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 v. Morales, 527 U.S. 41, 52,
119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (‘‘the overbreadth
doctrine permits the facial invalidation of laws that
inhibit the exercise of [f]irst [a]mendment rights if the
impermissible applications of the law are substantial
when judged in relation to the statute’s plainly legiti-
mate sweep’’ (internal quotation marks omitted)).
Instead, he believed that the case concerned how com-
mon people would view the statute as inapplicable,
thus implicating its vagueness. See United States v.
Williams, 553 U.S. 285, 304, 128 S. Ct. 1830, 170 L. Ed.
2d 650 (2008) (‘‘Vagueness doctrine is an outgrowth not
of the [f]irst [a]mendment, but of the [d]ue [p]rocess
[c]lause of the [f]ifth [a]mendment. A conviction fails
to comport with due process if the statute under which
it is obtained fails to provide a person of ordinary intelli-
gence fair notice of what is prohibited, or is so stan-
dardless that it authorizes or encourages seriously dis-
criminatory enforcement.’’). In its memorandum of
decision, the court found that Billings ‘‘employed well
reasoned and researched lines of argument’’ in making
his vagueness challenge.
Consistent with that conclusion, we emphasize that
Billings was not obligated to raise every conceivable
claim in the petitioner’s direct appeal. See Camacho v.
Commissioner of Correction, supra, 148 Conn. App.
495. It is clear that Billings pursued the 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 v. Commissioner
of Correction, 148 Conn. App. 517, 532, 85 A.3d 1199,
cert. denied, 312 Conn. 901, 91 A.3d 908 (2014). Thus,
the petitioner’s claim that appellate counsel rendered
ineffective assistance for failing to challenge the bribery
statute on overbreadth grounds fails by virtue of the
argument’s having been an untested novel legal theory.
See Ledbetter v. Commissioner of Correction, supra,
275 Conn. 461. Because we agree with the court’s con-
clusion that Billings was not deficient in his perfor-
mance, we need not address the prejudice prong under
Strickland. See Breton v. Commissioner of Correction,
supra, 325 Conn. 669.
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,7 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 trial 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
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’’8 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
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
petitioner 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 which
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
State v. DeLoreto, 265 Conn. 145, 168, 827 A.2d 671(2003); we read the court’s conclusion as resting on the
petitioner’s failure to establish prejudice under
Strickland.
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 v. Commissioner of Correction, 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 placed 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
of an intent to harm or assault, and not as mere puffery,
bluster, jest or hyperbole.’’11 (Citation omitted; internal
quotation marks omitted.) State v. Moulton, 310 Conn.
337, 367–68, 78 A.3d 55 (2013). Section 53a-181 (a) (3)
has been construed to criminalize not only true threats
but also fighting words. See State v. DeLoreto, supra,
265 Conn. 168. In addition, the Connecticut Judicial
Branch Criminal Jury Instructions, both at present and
at the time of the petitioner’s criminal trial, included a
true threats instruction within the ‘‘threat’’ element of
§ 53a-181 (a) (3). See Connecticut Judicial Branch Crim-
inal Jury Instructions § 8.4-4 (Rev. to June 12, 2009),
available at https://jud.ct.gov/JI/Criminal/Criminal.pdf
(last visited June 11, 2020).12
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, 329 Conn. 38. In other words, ‘‘[t]he
petitioner bears the burden of establishing that it is
reasonably probable that, had such an instruction been
given, it is reasonably likely that the result of the trial
would have been different.’’ Hickey v. Commissioner
of Correction, 329 Conn. 605, 619, 188 A.3d 715 (2018).
We are not convinced that the petitioner has satisfied
that burden.
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, 86 Conn. App. 381, 389, 861 A.2d 537 (2004), cert.
denied, 273 Conn. 923, 871 A.2d 1033, cert. denied, 546
U.S. 822, 126 S. Ct. 356, 163 L. Ed. 2d 64 (2005). This
remains so even when speech, although an aspect of the
underlying charge, is merely a component of aggressive
behavior. See id.; see also State v. Bagnaschi, 180 Conn.
App. 835, 851–52, 184 A.3d 1234 (first amendment not
implicated in prosecution of breach of peace charge
when ‘‘defendant’s conduct consisted of more than
mere speech’’), cert. denied, 329 Conn. 912, 186 A.3d
1170 (2018); cf. State v. Lo Sacco, 12 Conn. App. 481,
489, 531 A.2d 184 (evidence that defendant placed hands
in victim’s car window and leaned in to yell at her was
conduct, not speech, that served as basis for charge
of creating public disturbance in violation of General
Statutes § 53a-181a, which is similar to breach of
peace), cert. denied, 205 Conn. 814, 533 A.2d 568 (1987).
Accordingly, ‘‘[t]his court has . . . declined to con-
sider first amendment claims sounding in pure speech
where a defendant’s physical conduct was augmented
by his or her speech.’’ State v. Taveras, 183 Conn. App.
354, 368, 193 A.3d 561 (2018).
If, however, speech is the focus of the charge, our
analysis of whether that speech constitutes a proscriba-
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, 313 Conn. 434, 453,
97 A.3d 946 (2014); see also State v. Cook, 287 Conn.
237, 250, 947 A.2d 307 (‘‘circumstances surrounding the
alleged threat are critical to the determination of
whether the threat is a true threat’’), cert. denied, 555
U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).
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 v. Andriulaitis, 169 Conn. App. 286,
299, 150 A.3d 720 (2016). That conclusion is well sup-
ported by the factual circumstances at issue here. In its
memorandum of decision, the court made the following
relevant findings: (1) the petitioner was belligerent and
intoxicated; (2) after Jarmoszko rejected the $200 offer,
the petitioner became visibly agitated and wanted to
‘‘ ‘settle it like men’ ’’; (3) Jarmoszko feared that the
petitioner, who was approximately six feet, two inches,
tall and 230 pounds, wanted to ‘‘ ‘take a swing at me’ ’’
and subsequently returned to his vehicle to call the
police; (4) the petitioner approached Jarmoszko’s vehi-
cle and began banging on the window while making
unintelligible statements; and (5) Jarmoszko called the
police a second time after becoming increasingly con-
cerned for his safety due to the petitioner’s behavior.
Consistent with those findings, Jarmoszko testified at
the petitioner’s criminal trial that he made the second
call to the police because ‘‘I was concerned for my
safety. I didn’t know what the [petitioner] was doing.
And I wanted them to find out where they were. . . .
Why aren’t they here yet?’’13
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 State v. Andriu-
laitis, supra, 169 Conn. App. 298 (fact that victim was
instructed by police officer to retreat from entering
home due to defendant’s yelling and blocking entrance
demonstrated that ‘‘defendant’s demeanor was mani-
festly aggressive’’ and proscribable conduct). Although
Jarmoszko stated that the petitioner became agitated
and offered to ‘‘ ‘settle it like men’ ’’ in response to
Jarmoszko’s rejection of the $200 offer, the petitioner
thereafter became physically aggressive by approaching
Jarmoszko’s car window and banging on it repeatedly
while yelling unintelligibly. Cf. State v. Krijger, supra,
313 Conn. 456 (in holding that defendant did not make
statements to victim with serious expression of intent
to harm, court highlighted that defendant was angry
but ‘‘not physically aggressive’’); State v. Taveras, supra,
183 Conn. App. 369–70 (rejecting claim that sufficient
evidence existed to find defendant committed breach
of peace based on nonverbal conduct after noting
absence of evidence defendant made any threatening
gestures in conjunction with statement). In fact, this
court has previously held that physically touching a car
window to yell at a victim constitutes conduct that does
not implicate the first amendment for purposes of a
charge of creating public disturbance in violation of
§ 53a-181a, which is similar to breach of the peace. See
State v. Lo Sacco, supra, 12 Conn. App. 489 (evidence
that defendant approached victim’s car intoxicated,
placed his hands on window, leaned into car, and pro-
ceeded to yell at her indicates that conduct, not speech,
was basis for conviction and does not implicate first
amendment).
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 State v. 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 v. Commissioner of Correction, 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,
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.15 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 v. Com-
missioner of Correction, 322 Conn. 664, 678, 142 A.3d
1095 (2016). ‘‘Our reading of pleadings in a manner that
advances substantial justice means that a pleading must
be construed reasonably, to contain all that it fairly
means, but carries with it the related proposition that
it must not be contorted in such a way so as to strain the
bounds of rational comprehension.’’ (Internal quotation
marks omitted.) Grenier v. Commissioner of Transpor-
tation, 306 Conn. 523, 536, 51 A.3d 367 (2012).
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 v. Commissioner of Correction, 330 Conn. 520,
541, 198 A.3d 52 (2019). Indeed, a claim may be so
inextricably linked to another that deciding one neces-
sarily requires a resolution of both. See id., 540–42.
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
witnesses 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. State v. DeLoreto, supra,
265 Conn. 166–67. Nevertheless, we do not believe that
the record supports the petitioner’s position that his
claim of a failure to challenge jury instructions was
properly raised by virtue of his claim of a failure to
challenge § 53a-181 (a) as overbroad. Our conclusion
rests on a number of reasons.
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 v. King, 289 Conn. 496, 505,
958 A.2d 731 (2008). To properly do so, a challenge to
or request for an instruction must do more than broadly
refer to the subject matter at issue. See State v. Salm-
ond, 179 Conn. App. 605, 625–26, 180 A.3d 979 (‘‘[i]t
does not follow . . . that a request to charge addressed
to the subject matter generally, but which omits an
instruction on a specific component, preserves a claim
that the trial court’s instruction regarding that compo-
nent was defective’’ (internal quotation marks omit-
ted)), cert. denied, 328 Conn. 936, 183 A.3d 1175 (2018);
see also Practice Book § 42-16 (party challenging
court’s instruction ‘‘shall state distinctly the matter
objected to and the ground of exception’’). With these
requirements in mind, we believe that the petition’s
claim as to the ineffective assistance of counsel does
not encompass appellate counsel’s failure to challenge
the jury instructions. Nothing in the petition relates to
litigating a jury instruction on true threats, nor does it
consider whether the claim was properly preserved at
the criminal trial for purposes of appeal. To put it sim-
ply, the petition is completely silent on anything that
reasonably could be construed as relating to an issue
of litigating a true threats jury instruction in the petition-
er’s direct appeal.
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.16 Cf. Johnson
v. Commissioner of Correction, supra, 330 Conn. 541.
In addition, the respondent objected—for the same rea-
son he asserts in this appeal—when Kestenband was
questioned about his opinion regarding Billings’ failure
to raise the jury instruction issue on appeal. Cf. id. The
habeas court sustained the objection and instructed the
parties to ‘‘move on from jury instructions.’’ Moreover,
the petitioner did not frame his claim in his posttrial
brief as appellate counsel’s failure to challenge the jury
instruction but, instead, maintained that his claim con-
cerned a failure to challenge § 53a-181 (a) as unconstitu-
tionally overbroad and vague. See id. Thus, it is of no
surprise that the habeas court’s memorandum of deci-
sion fails to address the jury instruction issue as to
Billings, and it clearly did not consider the two claims
to be inextricably linked. Cf. id., 542.
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 State v. DeLoreto, supra, 265 Conn. 166–
67. We also note, however, that attacking the statute
on overbreadth grounds is entirely distinct from
attacking the breach of the peace charge on the basis
of instructional error. Although the two certainly are
related in this case, they are not intertwined to an extent
that one claim necessarily relies on the resolution of
the other. See Johnson v. Commissioner of Correction,
supra, 330 Conn. 541–42.
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
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.19 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
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, the 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-
ment21 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-
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 treating 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
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 that § 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
v. Kirsch, supra, 263 Conn. 408; see State v. Szepanski,
57 Conn. App. 484, 490, 749 A.2d 653 (2000) (predeces-
sor to § 14-227a (k) ‘‘is permissive, not restrictive,’’ and
therefore blood alcohol content taken from blood sam-
ple is not inadmissible simply because it fails to satisfy
all of statute’s requirements). The argument that § 14-
227a controls the admission of blood test results in a
charge brought under that statute was, at best, weak.
Accordingly, Billings’ failure to raise it on appeal did
not constitute deficient performance. See Camacho v.
Commissioner of Correction, supra, 148 Conn. App.
495.
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, 569 U.S. 141, 148–49, 133 S. Ct. 1552, 185 L.
Ed. 2d 696 (2013), the fourth amendment requires that
a law enforcement officer must obtain a valid search
warrant when seeking to take a blood sample from a
defendant without his or her consent.23 Where exigent
circumstances exist, however, a search warrant is not
required to satisfy the fourth amendment. Id. 148–49.
The court has also held that, although hospital employ-
ees ‘‘may have a duty to provide the police with evidence
of criminal conduct that they inadvertently acquire in
the course of routine treatment, when they undertake to
obtain such evidence from their patients for the specific
purpose of incriminating those patients, they have a
special obligation to make sure that the patients are
fully informed about their constitutional rights, as stan-
dards of knowing waiver require.’’ (Emphasis in origi-
nal.) Ferguson v. Charleston, 532 U.S. 67, 84–85, 121 S.
Ct. 1281, 149 L. Ed. 2d 205 (2001). We further note that
the fourth amendment is not implicated when the police
do not take a petitioner’s blood sample or ask that it
be drawn. See State v. Petruzzelli, 45 Conn. App. 804,
807, 699 A.2d 204 (1997), citing Skinner v. Railway
Labor Executives’ Assn., 489 U.S. 602, 614, 109 S. Ct.
1402, 103 L. Ed. 2d 639 (1989).
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.24 See State v. Petruz-
zelli, supra, 45 Conn. App. 808 n.3. These findings,
which are supported by the record, substantiate the
primary reasons why Billings decided against challeng-
ing the admission of the blood test results on appeal.
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 v. Railway Labor Execu-
tives’ Assn., supra, 489 U.S. 621 n.5 (no indication or
argument that railroad regulations mandating toxicol-
ogy tests of employee involved in accident ‘‘[were]
designed as a pretext to enable law enforcement author-
ities to gather evidence of penal law violations’’ (inter-
nal quotation marks omitted)); State v. Petruzzelli,
supra, 45 Conn. App. 807 (fourth amendment not impli-
cated when police neither took blood sample nor
requested hospital to draw blood sample from defen-
dant). Instead, there is a vast amount of evidence sug-
gesting that Magrey’s request for the petitioner to be
taken to the hospital was based on a genuine concern
for his health.25
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 v. Commissioner of Correction, 175
Conn. App. 807, 831, 170 A.3d 25 (evidence supported
habeas court’s conclusion that appellate counsel ‘‘made
a reasonable strategic decision in choosing to forgo a
meritless or weak claim of prosecutorial impropriety’’),
cert. denied, 327 Conn. 969, 173 A.3d 954 (2017). The
petitioner further has failed to prove that he suffered
any prejudice as a result of appellate counsel’s failure
to raise that issue on appeal. See Small v. Commis-
sioner of Correction, supra, 286 Conn. 728–29. Accord-
ingly, the court properly denied the petition for a writ
of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court granted the petitioner’s motion for a judgment of acquittal on
the threatening count.
2
General Statutes § 53a-149 provides in relevant part: ‘‘(a) A person is
guilty of bribery of a witness if he offers, confers or agrees to confer upon
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.
4
We note that the court did not provide any articulation or discussion
in rejecting the petitioner’s claim that trial counsel rendered ineffective
assistance 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 v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994).
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, 160 Conn. App. 266 n.5. That conclusion
undercuts any likelihood of success had Cashman made an overbreadth
argument. See Sanders v. Commissioner of Correction, supra, 169 Conn.
App. 834.
6
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with the intent to
cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person . . . (3) threatens to commit any crime against another
person or such other person’s property . . . .’’
Furthermore, the statute requires that, to obtain a conviction, a person
must have ‘‘act[ed] with the requisite intent or recklessness.’’ Commission
to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat.
Ann. § 53a-181 (West 2012) comment, p. 396.
As our Supreme Court has held, ‘‘the predominant intent [required under
§ 53a-181 (a)] is to cause what a reasonable person operating under contem-
porary community standards would consider a disturbance to or impediment
of lawful activity, a deep feeling of vexation or provocation, or a feeling of
anxiety prompted by threatened danger or harm. In order to sustain a
conviction for [breach of the peace], the state must begin by demonstrating
that the defendant had such a state of mind.’’ (Internal quotation marks
omitted.) State v. Wolff, 237 Conn. 633, 670, 678 A.2d 1369 (1996).
7
‘‘True threats encompass those [unprotected] statements where the
speaker means to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group of individuals.
. . . The speaker need not actually intend to carry out the threat. Rather,
a prohibition on true threats protect[s] individuals from the fear of violence
and from the disruption that fear engenders, in addition to protecting people
from the possibility that the threatened violence will occur. . . . Intimida-
tion in the constitutionally proscribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily harm or death.’’
(Citations omitted; internal quotation marks omitted.) Virginia v. Black,
538 U.S. 343, 359–60, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
8
As the United States Supreme Court has explained, ‘‘fighting words—
those personally abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, inherently likely to provoke
violent reaction—are generally proscribable under the [f]irst [a]mendment.’’
(Internal quotation marks omitted.) Virginia v. Black, 538 U.S. 343, 359,
123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). In order to rise to the level of
fighting words, the speech must have the tendency to cause ‘‘imminent acts
of violence or an immediate breach of the peace.’’ State v. Szymkiewicz,
237 Conn. 613, 620, 678 A.2d 473 (1996). Although fighting words and true
threats are two related types of unprotected speech, the former concerns
speech that has a direct tendency to evoke acts of violence while the latter
encompasses speech that puts the listener in fear of violence. See State v.
Parnoff, 329 Conn. 386, 409–10, 186 A.3d 640 (2018) (Kahn, J., concurring
in the judgment) (examining differences between true threats and fighting
words exceptions to first amendment).
9
We note that when Kestenband was asked about Billings’ performance
on the issue, the respondent objected on the ground that the claim in the
petition concerning Billings did not refer to anything about his failure to
litigate jury instructions. The court agreed that the petition claimed only
that Billings failed to challenge the breach of the peace statute on appeal
as facially overbroad and then asked the petitioner’s counsel to ‘‘move on
from jury instructions.’’
10
Our review of the record reveals yet another procedural wrinkle, albeit
one that neither party has addressed. Specifically, the petition alleges that
trial counsel rendered ineffective assistance ‘‘by failing to request a jury
instruction or to take exception to the judge’s charge as given, because the
[petitioner’s] speech, itself, could not constitute the basis for [the] breach
of [the] peace [charge] unless it constituted fighting words . . . .’’ (Empha-
sis added.) In contrast, on appeal, the petitioner phrases this claim differ-
ently, alleging that trial counsel was ‘‘ineffective for failing to raise a claim
of instructional error for the trial court’s failure to instruct the jury on true
threats for the breach of the peace charge.’’ (Emphasis added.)
Despite this subtle distinction in how the claim was framed, both parties
appear to believe that the petitioner’s claim concerns a failure to instruct
on both true threats and fighting words. For instance, Cashman was ques-
tioned by the petitioner’s habeas counsel about his reasons for not bringing
the issue of fighting words or true threats to the court’s attention when
challenging the breach of the peace charge. The respondent made no objec-
tion to that questioning. When Kestenband was questioned about his opinion
as to Cashman’s performance, he stated that Cashman ‘‘should’ve requested
a jury instruction on the meaning of true threats because the claim here was
that [the petitioner] committed a breach of [the] peace based on threatening
conduct. And yet the [criminal court] never defined for the jury what the
term, true threat, actually means . . . .’’ Moreover, in both his pretrial and
posttrial brief, the petitioner framed the claim in the following manner:
‘‘Because the petitioner’s comment did not constitute a ‘true threat’ or
‘fighting words,’ it remained protected speech and the jury should have been
instructed about the difference between unprotected and protected speech.’’
In his posttrial brief, the respondent provides only a general phrasing of
the claim, as follows: ‘‘Cashman was ineffective because he did not seek a
jury instruction that the petitioner’s speech, itself, could not constitute the
basis for a breach of [the] peace . . . .’’ (Internal quotation marks omitted.)
Finally, the habeas court itself framed the petitioner’s claim in a general
manner: ‘‘Claim 9i. claims ineffective assistance of trial counsel for not
taking exception to the court’s instructions to the jury because the petition-
er’s speech itself could not constitute a breach of [the] peace.’’
Thus, the record indicates that both parties presumed that the petitioner’s
claim was predicated on a failure to request a jury instruction with respect
to both a true threats instruction and a fighting words instruction for the
breach of the peace charge. We, therefore, address the petitioner’s claim on
appeal in the form the petitioner and the respondent appear to have accepted.
11
In its charge to the jury on the breach of the peace count, the trial court
gave the following instruction with respect to the ‘‘threat’’ element: ‘‘Element
two is a threat. And that requires that the [petitioner] threatened to commit
a crime against another person or such other person’s property. The predomi-
nant intent must be to cause what a reasonable person operating under
contemporary circumstances would consider a disturbance to or impedi-
ment of a lawful activity, a deep feeling of vexation or provocation, or a
feeling of anxiety prompted by threatened danger or harm. And, in this case,
the threat that is alleged to have been made is to commit a crime against
[Jarmoszko]. Once again, my instruction on intent applies to this count as
well.’’ There is no dispute that the court failed to provide an instruction on
true threats in accordance with DeLoreto.
12
The criminal jury instructions on the Judicial Branch website state that
they are ‘‘intended as a guide for judges and attorneys in constructing charges
and requests to charge. The use of these instructions is entirely discretionary
and their publication by the Judicial Branch is not a guarantee of their
legal sufficiency.’’ Connecticut Judicial Branch Criminal Jury Instructions,
available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf; see also State
v. Reyes, 325 Conn. 815, 822 n.3, 160 A.3d 323 (2017); State v. Outlaw, 179
Conn. App. 345, 356 n.9, 179 A.3d 219, cert. denied, 328 Conn. 910, 178 A.3d
1042 (2018). Accordingly, we recognize that such instructions do not have
the force of law and refer to the Connecticut Judicial Branch Criminal Jury
Instructions for informational purposes only.
13
The record further indicates that the state’s theory of the case was
predicated on the petitioner’s conduct, not on his words. For instance, when
arguing against a judgment of acquittal on the breach of the peace charge,
the prosecutor emphasized that the state’s theory was that the petitioner
‘‘threatened [Jarmoszko] by his actions . . . .’’ That threat, the prosecutor
asserted, ‘‘[does not] have to amount to words. I think, under all the intended
circumstances, that [the petitioner] was certainly threatening to assault
[Jarmoszko], and that’s how [Jarmoszko] took it.’’
14
In reaching this conclusion, we acknowledge that the habeas court
rejected the petitioner’s claim for lack of prejudice on the ground that his
statement, ‘‘ ‘why don’t we . . . settle it like men,’ ’’ constituted fighting
words. For the reasons already discussed, we do not agree that the first
amendment was implicated, and, thus, disagree with that conclusion. Never-
theless, ‘‘[i]t is axiomatic that [w]e may affirm a proper result of the trial
court for a different reason.’’ (Internal quotation marks omitted.) Diaz v.
Commissioner of Correction, 125 Conn. App. 57, 63 n.6, 6 A.3d 213 (2010),
cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).
Even if we were to assume that the first amendment was implicated, our
review of the record strongly supports a determination that this statement—
in light of the circumstances in which it was made—constituted a true
threat, not fighting words. Compare State v. Parnoff, 329 Conn. 386, 394,
186 A.3d 640 (2018) (‘‘[t]o qualify as unprotected fighting words, the speech
must be likely to provoke an imminent violent response from the
[addressee]’’ (emphasis in original; internal quotation marks omitted)), to
State v. Moulton, supra, 310 Conn. 349 (‘‘[t]rue threats encompass those
statements [in which] the speaker means to communicate a serious expres-
sion of an intent to commit an act of unlawful violence to a particular
individual or group of individuals’’ (internal quotation marks omitted)). The
evidence adduced at the criminal trial and the findings made by the habeas
court suggest that the statement was intended to engender fear in Jarmoszko
of unlawful violence, not to provoke an imminent violent response. Jarmos-
zko specifically testified to that fear during the criminal trial. Jarmoszko
was, in fact, in fear of his physical safety as a result of the petitioner’s
statement and his subsequent conduct, prompting him to twice contact the
police. See State v. DeLoreto, supra, 265 Conn. 156–58 (considering reaction
of reasonable person when evaluating statement as true threat). We further
note that the petitioner not only became physical with the responding police
officers when they attempted to take him into custody but also attempted
to spit on the officers and ambulance personnel and was physically
restrained when being transported to the hospital. These circumstances
shed light on the fact that the petitioner’s statement to Jarmoszko was a
serious expression of an intent to cause him harm and to place him in fear
of such harm. Cf. State v. Krijger, supra, 313 Conn. 456–58 (in analyzing
whether statement was true threat, noting that defendant was not physically
aggressive after making statement and subsequently apologetic to victim).
15
In his principal brief to this court, the petitioner asks that we review
his claim under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
should we conclude that it is unpreserved. In his reply brief to this court,
however, the petitioner acknowledges that Golding is inapplicable and there-
fore no longer seeks review under Golding. See Moye v. Commissioner of
Correction, 316 Conn. 779, 787, 114 A.3d 925 (2015) (‘‘Golding review is
available in a habeas appeal only for claims that challenge the actions of
the habeas court’’ and is not available for unpreserved claims of ineffective
assistance arising out of petitioner’s criminal trial).
16
The only testimony elicited from Billings on the jury instructions issue
was whether Cashman’s failure to object to the instructions given at trial
had any effect on Billings’ decision to raise that issue on appeal in light of
the requirements set forth under State v. Kitchens, 299 Conn. 447, 10 A.3d
942 (2011).
17
Even if we were to reach a contrary conclusion, the record provides
overwhelming support for the habeas court’s determination that Billings did
not render deficient performance when acting as the petitioner’s appellate
counsel. In its memorandum of decision, the court found that Billings had
‘‘testified credibly as to his approach to, and diligence in, the petitioner’s
appeal. He eschewed attacking the breach of [the] peace conviction and
concentrated on the two felony convictions. . . . And [because the breach
of the peace conviction’s] six month sentence was concurrent to the other
three sentences, prevailing on such a claim would have been of little value.
This is especially true because it was concurrent to a one year sentence
for interfering with police . . . that has gone completely unchallenged.’’
During the habeas trial, Billings extensively testified to his reasons for
choosing which claims to raise in the direct appeal. Billings stated that he
did not believe challenging the breach of the peace charge would have been
successful. He further explained that in deciding which claims to raise,
his approach was to bring those claims that would afford practical relief,
specifically, shortening the petitioner’s sentence. As Billings stated, ‘‘I am
not going to raise every conceivable issue in every case. Strategically, it
takes away from the other issues.’’
This court has repeatedly held that appellate counsel ‘‘is not under an
obligation to raise every conceivable issue.’’ (Internal quotation marks omit-
ted.) Smith v. Commissioner of Correction, supra, 148 Conn. App. 531. The
record is replete with tactical justifications made by Billings that the habeas
court expressly credited. See, e.g., Bush v. Commissioner of Correction,
169 Conn. App. 540, 550, 151 A.3d 388 (2016) (‘‘the tactical decision of
appellate counsel not to raise a particular claim is ordinarily a matter of
appellate tactics, and not evidence of incompetency, in light of the presump-
tion of reasonable professional judgment’’ (internal quotation marks omit-
ted)), cert. denied, 324 Conn. 920, 157 A.3d 85 (2017). We believe those
justifications are well-founded.
18
General Statutes § 14-227a (k) provides in relevant part: ‘‘[E]vidence
respecting the amount of alcohol or drug in the blood or urine of an operator
of a motor vehicle involved in an accident who has suffered or allegedly
suffered physical injury in such accident, which evidence is derived from
a chemical analysis of a blood sample taken from or a urine sample provided
by such person after such accident at the scene of the accident, while en
route to a hospital or at a hospital, shall be competent evidence to establish
probable cause for the arrest by warrant of such person for violation of
subsection (a) of this section and shall be admissible and competent in any
subsequent prosecution thereof if: (1) The blood sample was taken or the
urine sample was provided for the diagnosis and treatment of such injury;
(2) if a blood sample was taken, the blood sample was taken in accordance
with the regulations adopted under subsection (d) of this section; (3) a
police officer has demonstrated to the satisfaction of a judge of the Superior
Court that such officer has reason to believe that such person was operating
a motor vehicle while under the influence of intoxicating liquor or drug or
both and that the chemical analysis of such blood or urine sample constitutes
evidence of the commission of the offense of operating a motor vehicle
while under the influence of intoxicating liquor or drug or both in violation
of subsection (a) of this section; and (4) such judge has issued a search
warrant in accordance with section 54-33a authorizing the seizure of the
chemical analysis of such blood or urine sample. Such search warrant may
also authorize the seizure of the medical records prepared by the hospital
in connection with the diagnosis or treatment of such injury.’’
19
The parties do not dispute that the petitioner’s medical records were
obtained from the hospital pursuant to a valid search warrant.
20
The court agreed with Cashman that there was no evidence yet presented
that the petitioner was physically injured as a result of the motor vehicle
accident with Jarmoszko.
21
‘‘The fourth amendment to the United States constitution, made applica-
ble to the states through the [due process clause of the] fourteenth amend-
ment, prohibits unreasonable searches and seizures by government agents.’’
(Internal quotation marks omitted.) State v. Jones, 320 Conn. 22, 64, 128
A.3d 431 (2015).
22
To the extent that the petitioner argues that Cashman rendered ineffec-
tive assistance for failing to challenge the admission of the blood test results
as a business record, we determine that such a claim is unpreserved. The
relevant claim as stated in the operative habeas petition asserts that Cashman
rendered ineffective assistance by failing to pursue a motion to suppress
the petitioner’s blood test results under the fourth amendment to the United
States constitution and article first, §§ 7 or 9, or both, of the Connecticut
constitution. Absent from the petition is any reference to Cashman’s failure
to object to the blood test results being admitted under the business record
exception to the rule against hearsay. See State v. Kirsch, 263 Conn. 390,
400, 820 A.2d 236 (2003) (‘‘[General Statutes §] 52-180 sets forth an exception
to the evidentiary rule otherwise barring admission of hearsay evidence for
business records that satisfy express criteria’’); Jeffrey v. Commissioner of
Correction, 36 Conn. App. 216, 220–23, 650 A.2d 602 (1994) (trial counsel’s
failure to object to admission of sex crimes report on hearsay grounds did
not prejudice petitioner when portions of police report could have been
admitted as business record). Moreover, the record before the habeas court
indicates that the petitioner’s hospital records were accompanied by a medi-
cal records certificate and thus would have been admissible under General
Statutes § 4-104. Because the petitioner raises a claim that was not before
the habeas court, the respondent had no opportunity to question Cashman
as to whether the existence of the self-authentication certificate made an
objection that was based on the business records exception meritless.
‘‘For this court to . . . consider a claim on the basis of a specific legal
ground not raised during trial would amount to trial by ambuscade, unfair
both to the [court] and to the opposing party.’’ (Internal quotation marks
omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 177, 982
A.2d 620 (2009). Thus, we decline to review it on appeal. See Eubanks v.
Commissioner of Correction, 329 Conn. 584, 597–98, 188 A.3d 702 (2018).
23
In McNeely, the court rejected the state’s proposed per se rule that
blood testing in drunken driving cases constitutes an exigency for purposes
of the fourth amendment. Missouri v. McNeely, supra, 569 U.S. 152–56. In
reaching that determination, the court maintained that ‘‘a compelled physical
intrusion beneath [a defendant’s] skin and into his [or her] veins to obtain
a sample of his [or her] blood for use as evidence in a criminal investigation’’
constitutes a search under the fourth amendment. Id., 148. Accordingly, a
law enforcement officer is permitted to invade another person’s body only
after obtaining a warrant to do so. Id. The court, however, noted that
the warrant requirement ‘‘is subject to exceptions. One well-recognized
exception, and the one at issue in this case, applies when the exigencies
of the situation make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the [f]ourth [a]mend-
ment.’’ (Internal quotation marks omitted.) Id., 148–49. The court further
noted that because the state had not argued that there were exigent circum-
stances other than the per se rule it sought to have applied, the court could
not determine whether such circumstances existed. Id., 165.
24
As the habeas court correctly noted, ‘‘Hedberg did not testify that he
saw no reason to transport [the petitioner to the hospital].’’
25
Also absent from the record is any evidence suggesting that the hospital
did not take the blood sample for the purpose of treating the petitioner.