Opinion
CV164008326S
08-09-2018
Edward DAVIS (Inmate #106894) v. WARDEN
UNPUBLISHED OPINION
OPINION
Mullarkey, J.T.R.
The petitioner, Edward Davis, initiated the present matter by way of a petition for a writ of habeas corpus filed on September 6, 2016, and which was amended by counsel for the third time on November 16, 2017. The third amended petition raises claims in two counts: first, ineffective assistance of trial counsel, attorney Stephen F. Cashman; and second, ineffective assistance of appellate counsel, attorneys Peter G. Billings and Sean P. Barrett. The respondent’s return denies the petitioner’s material allegations and that he is entitled to habeas corpus relief.
The parties appeared before the court on March 20 and 26, 2018, for a trial on the merits. The petitioner testified and presented the testimony of his former trial counsel, attorney Cashman, his former appellate counsel, attorney Billings, and his expert witness, attorney Jeffrey Kestenband. The petitioner entered numerous documents into evidence, consisting of transcripts, copies of court documents, pleadings and briefs, as well as court decisions. The parties filed post-trial briefs. For the reasons articulated more fully below, the petitioner’s claims are denied.
UNDERLYING CRIMINAL TRIAL AND DIRECT APPEAL
The Appellate Court’s decision on direct appeal summarized the underlying facts as reasonably found by the jury. "On November 20, 2010, the [petitioner] and his stepson, Jonathan Oakes, were boating on the Connecticut River. While on the boat, the [petitioner] consumed eight or nine beers. In the late afternoon, the two returned the boat to a boat launch in East Hartford, loaded it onto a trailer attached to the [petitioner’s] truck, and drove away. At approximately 4:50 p.m., the [petitioner] and Oakes stopped at a liquor store and purchased a bottle of Peppermint Schnapps. The [petitioner] later admitted to a police officer that he had personally consumed almost a liter of Peppermint Schnapps.
"At approximately 5:30 p.m., while driving his truck on Route 83 in Manchester, the [petitioner] collided with a vehicle that had been stopped at a traffic signal. The driver of the other vehicle, Paul Jarmoszko, testified that he initially heard tires screech and then felt ‘a jolt and the car got pushed forward ... a few feet.’ After the accident, Jarmoszko and the [petitioner] exited their respective vehicles. Jarmoszko immediately went to inspect the damage on the rear of his vehicle, while the [petitioner] inspected his boat. Shortly after inspecting his boat, the [petitioner] met Jarmoszko between the two vehicles.
"At trial, Jarmoszko positively identified the [petitioner] as the operator of the vehicle. He testified that the operator of the truck was a white male, approximately six feet, one inch tall, with long curly hair who weighed about 230 or 240 pounds."
"After observing the damage to Jarmoszko’s vehicle, the [petitioner] offered to pay him a ‘couple of hundred bucks ...’ Jarmoszko rejected the offer, at which point the [petitioner] ‘got agitated and said something [to the effect of] this is how it’s going to be? Why don’t we pull over to the side and settle it like men?’ Jarmoszko, believing the [petitioner] wanted to fight him, told the [petitioner] he was going to contact the police and got back into his vehicle to place the phone call. While speaking to the police, Jarmoszko observed the [petitioner] bang on his car’s window several times, yell and then walk away. Jarmoszko later heard the engine of the [petitioner’s] truck start.
"Shortly afterward, Michael Magrey, a Manchester police officer, was dispatched to the scene of the accident. Magrey parked his police cruiser behind the truck and approached the vehicle’s driver’s side. He observed a single occupant in the driver’s seat of the truck who was revving the vehicle’s engine and ‘appeared to be out of it, under the influence of something.’ This individual was later identified as Oakes. Magrey asked Oakes to turn the truck’s engine off, hand over the keys and step out of the vehicle. Oakes followed the officer’s instructions and sat on the curb.
"Magrey then went to make sure that Jarmoszko was not injured. During his interaction with Jarmoszko, Magrey was informed that Oakes was not the person Jarmoszko had observed exiting the driver’s side door after the accident. On the basis of this information, Magrey asked Oakes where his companion was located, to which Oakes responded that he was ‘in the back.’ The officer eventually located the [petitioner] lying down inside the boat. His skin appeared blue or purple, was cold to the touch, and his clothing was wet. Although initially unresponsive to questioning, the [petitioner’s] demeanor changed drastically. He became hostile and belligerent toward Magrey, yelling and cursing at him. Magrey testified that the [petitioner] kept ‘coming at me’ and he had to ‘put [the petitioner] in an arm bar [to] keep him down.’ Eventually, another officer got into the boat and was able to assist Magrey in placing handcuffs on the [petitioner]. The [petitioner] remained in this state of belligerence, attempting to spit on Magrey and ambulance personnel who were attempting to treat him. He was placed on a hospital gurney, while in restraints, and taken to Manchester Hospital for treatment. The [petitioner] was treated and later released from the hospital.
"Medical records from the [petitioner’s] treatment at the hospital revealed that he had a blood alcohol content of 0.165. The [petitioner] was subsequently arrested by officers of the Manchester Police Department. While in police custody, the [petitioner] admitted to Magrey that he had spoken to Jarmoszko after the accident and had offered him money in order to avoid police involvement. During this discussion, the [petitioner] further admitted to having consumed almost a liter of Peppermint Schnapps prior to the accident.
The following colloquy occurred at trial:
"The state charged the [petitioner] with the following counts in the part A information: (1) driving under the influence, (2) bribery of a witness, (3) threatening in the second degree, (4) breach of the peace in the second degree and (5) interfering with an officer. The state also charged the [petitioner], under the part B information, with being a third time offender. The part A counts were tried to a jury and, at the conclusion of trial, a verdict of guilty was returned on all counts with the exception of the threatening count. Afterward, the state proceeded on the part B information and the case was tried to the court. At the conclusion of trial, the court found the [petitioner] guilty on the count of being a third time offender." State v. Davis, 160 Conn.App. 251, 254-57, 124 A.3d 966, cert. denied, 320 Conn. 901, 127 A.3d 185 (2015).
The petitioner was convicted by the jury of one count of operating a motor vehicle with an elevated blood alcohol content in violation of General Statutes § 14-227a(a)(2), one count of bribery of a witness in violation of General Statutes § 53a-149(a), one count of breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(3) and one count of interfering with a police officer in violation of General Statutes § 53a-167a. The trial court, after the jury returned these findings of guilty, convicted the petitioner on a part B information of being a third time offender in violation of § 14-227a(g)(3).
The petitioner appealed from the judgment of conviction and claimed "that § 53a-149 is unconstitutionally vague as applied and that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt on the bribery of a witness and the third time offender counts." Id., 253-54. The Appellate Court affirmed the judgment of the trial court. Id., 270. The petitioner then brought the present habeas corpus matter.
DISCUSSION
By his revised amended petition dated November 16, 2017, the petitioner claims ineffective assistance of both trial and appellate counsel. The petitioner’s numerous allegations of ineffective assistance of trial counsel are listed in paragraph 9a. through 9 l . Tough cases lead to hard choices for defense counsel. The essential defense at trial was that the petitioner was not driving the vehicle and that his monetary offer to the victim was akin to that of an insurance adjuster’s.
" ‘In Strickland v. Washington, [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction ... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense ... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable ... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.’ (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn.App. 425, 429-30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).
" ‘To satisfy the perfoitnance prong [of the Strickland test] the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’ (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn.App. 291, 295, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). ‘[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 135 Conn.App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).
" ‘With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings ... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn.App. at 430, 17 A.3d 1089." Holloway v. Commissioner of Correction, 145 Conn.App. 353, 364-65, 77 A.3d 777 (2013).
Claims 9a. and 9b. assert a failure to attack the constitutionality of the bribery and breach of peace statutes on their faces. Claim 9i. claims ineffective assistance of trial counsel for not taking an exception to the court’s instructions to the jury because the petitioner’s speech itself could not constitute a breach of peace. All statutes may be attacked for vagueness. In the context of this jury trial such attacks would have been meritless. In State v. Davis, supra, 160 Conn.App. 261-66, the Appellate Court specifically rejected the vagueness argument. The protection of free speech is terribly important. But one wonders if James Madison’s authorship of the first amendment was designed to protect belligerent drunks’ invitations to "settle this like men." A case cited by the petitioner squarely addresses the claimed vagueness and over breadth of General Statutes § 53a-181(a)(3). State v. Deloreto, 265 Conn. 145, 827 A.2d 621 (2003). While § 53a-181(a)(5) is discussed in State v. Liebenguth, 181 Conn.App. 37, 186 A.3d 39 (2018), that court confirms that what constitutes "fighting words" is informed by the facts surrounding such utterances. State v. Taveras, 183 Conn.App. 354 (2018), is particularly apt for the evidence in this jury trial. The victim testified that while stopped at a traffic signal his vehicle was struck from the rear. Mr. Jarmoszko testified that the petition "said a couple of hundred bucks and forget about the whole thing or something like that." The victim declined the offer and the 6′ 1″ to 6′ 2″, 230-240 pound petitioner got agitated and said something to the regards of, "this is how it’s going to be? Why don’t we pull over to the side and settle it like men." The victim testified that he thought the petitioner wanted to fight him. The victim got back into his vehicle and called the police fearing "that he might take a swing at me." The petitioner returned to the victim’s vehicle and banged on the window a few times saying something unintelligible to the victim. In less than a minute the victim heard the petitioner’s truck engine revving. Concerned for his safety the victim called the police a second time. Petitioner’s Exhibit 3, pp. 24-26. This court finds that in the underlying circumstance the petitioner’s trite invitation to fight constituted "fighting words."
In paragraph 9d., the petitioner complains of a failure to pursue a motion to suppress the petitioner’s blood test results. Attorney Cashman at the habeas trial testified that he thought his best approach was through General Statutes § 14-227a(k). That statute contains a search warrant requirement fulfilled by trial exhibit 9. However, the petitioner seems to be claiming that a search warrant was required before his blood was drawn. Neither General Statutes § 14-227a(b) or (c) applied in this case. Attorney Cashman properly objected under the statute but was not sustained. State v. Lee, 138 Conn.App. 420, 52 A.3d 736 (2012), cert. granted, 321 Conn. 911, 136 A.3d 644 (2016). Cited by the petitioner, Williams v. Commissioner of Correction, 120 Conn.App. 412, 991 A.2d 705, cert. denied, 297 Conn. 915, 996 A.2d 279 (2010), quotes from Ricks v. Commissioner of Correction, 98 Conn.App. 497, 514, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007): "In order to show ineffective assistance for the failure to make [or proceed with] a suppression motion, the underlying motion must be shown to be meritorious ..."
The Supreme Court granted certification to appeal from the Appellate Court’s decision, "limited to the following issue: "In light of our decision in State v. Wright, 320 Conn. 781, 135 A.3d 1 (2016), did the Appellate Court correctly determine that the proper remand to the trial court was a merger of the conspiracy counts, instead of a vacatur of one of the two conspiracy counts?"
Although the petitioner’s expert witness cited Missouri v. McNeely, 569 U.S. 141, 151 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and cited State v. Tuz, judicial district of Litchfield, Docket No. MV-10-228695 (October 22, 2010) (2010 WL 4609396), neither controls, but both are informative. Striking down a per se Missouri statute on blood draws in DWI cases ordered by the police without permission or a warrant, Justice Sotomayor adopts an exigency exception to the warrant requirement based on the totality of the circumstances. That case involved admitted state action by the police to obtain evidence. While State v. Tuz, supra, is not controlling, it also is informative. There a driver denied having any injury. While the court found no state action causing the medical treatment and blood test, it was not supplied with sufficient medical information to meet the criteria in § 14-227a(k)(1). The Fourth Amendment was not violated. The state merely did not persuade the court on the facts that the blood was taken for diagnosis and treatment like the conclusions in State v. Petruzzelli, 45 Conn.App. 804, 699 A.2d 204 (1997).
In the petitioner’s jury trial EMT Andrew Hedberg testified that this incident was one of his first few calls as an EMT. At the scene he found the petitioner standing in a boat, soaking wet, loud and combative with 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 police to transport the petitioner and placed a mask over his spitting mouth. Petitioner’s Exhibit 3, pp. 126-30. Contrary to the petitioner’s claim, EMT Hedberg did not testify that he saw no reason to transport. Petitioner’s Exhibit 17, Hedberg’s trip sheet, noted that in the petitioner’s truck it was unknown if he had been wearing a seatbelt and no air bag had deployed.
Officer Michael Magrey testified at the jury trial to his observations. Petitioner’s Exhibit 3. He was not sure if the petitioner was in a "medical condition" but he looked blue or purple with cold soaked skin. The petitioner, lying in a boat, was unresponsive to the officer’s commands, and opened then closed his eyes. When he finally opened his eyes he swore at the officer and threatened him with physical violence. Petitioner’s Exhibit 3, pp. 57-59. Trying an arm bar to keep the petitioner down his lack of success resulted in a second officer helping to get the petitioner into hand cuffs. Unrestrained emotionally the petitioner continued swearing, using a racial slur, belligerent and spit on the officer and ambulance personnel. Petitioner’s Exhibit 3, pp. 60-61.
While not recalling at trial whether he sent the petitioner to the hospital he did recall sending an officer with him due to continued belligerence. Petitioner’s Exhibit 3, p. 62. The petitioner had already told the officer that he had drunk almost a liter of peppermint schnapps. Petitioner’s Exhibit 3, p. 102. Officer Magrey also knew that earlier in that afternoon on November 20th, the fifty-year-old petitioner had fallen into the Connecticut River. As stated about the hospital transport in State v. Petruzzelli, supra, 45 Conn.App. 808: "For the police to have done otherwise would have been a dereliction of their duties."
Once at the hospital, blood was drawn but not at the request of the police. Unlike in State v. Tuz, supra, this case has a thorough medical record. Respondent’s Exhibit E. The petitioner arrived at Manchester Memorial Hospital at 6:38 p.m. After being assessed as intoxicated, agitated, and cold, some history was obtained from the petitioner’s wife including a recent occurrence of falling. After sedation with Haldol and Ativan, the petitioner was placed in a "monitored" bed until he could be psychiatrically assessed. The petitioner was transferred to a regular bed and not discharged until 1:38 p.m. the next day after receiving another Haldol injection and a saline IV. Respondent’s Exhibit E also recorded that the petitioner’s truck had no airbag and whether he was wearing a seatbelt was unknown. No evidence is contained in the 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. See, e.g., State v. Szepanski, 57 Conn.App. 484, 488, 749 A.2d 653 (2000) (trial court correctly concluded that "the initial taking of the defendant’s blood [did] not violate any constitutional right because the blood test was performed at a hospital for medical purposes rather than at the request of a law enforcement officer."), citing and quoting State v. Petruzzelli, supra, 45 Conn.App. 807.
Claims 9g. and 9h. In 9g., the petitioner cannot mean that trial counsel should renew the same hearsay and relevance objections after the court has ruled against him. And it is no longer necessary to "take an exception." Failing to object on confrontation grounds would be a different matter if Jonathan Oakes were not going to be called as the petitioner’s star witness. Oakes was called by the petitioner and testified that he was driving at the time of the accident. The evidence to which the petitioner objects would have come in to impeach him. There is no likelihood that trial counsel’s decision not to repeat an overruled hearsay objection or add a confrontation objection would have kept the evidence out or influenced the outcome of the petitioner’s jury trial. Servello v. Commissioner of Correction, 95 Conn.App. 753, 761-62, 899 A.2d 636 (decision by trial counsel to not object to hearsay testimony did not support ineffectiveness claim; "the decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency" [internal quotation marks omitted] ), cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).
Paragraph 9j. faults trial counsel’s "failure" to request a jury instruction on voluntary intoxication. This might work in moot court. In an actual trial with real jurors counsel was within the bounds of good tactics in not requesting an instruction which effectively conceded an element in the felony DUI count. Such an instruction would also diminish counsel’s best argument against the bribery charge: that the petitioner’s offer of money was akin to an insurance adjuster’s, not meeting the bribery statute’s specific intent requirement. Counsel emphasized that civil analogy in questioning the victim. It is a good argument which should have resonated with those jurors who have been in accidents. The offer of money to settle a civil claim requires the intent to so settle. The state’s case for bribery of a witness was its weakest, but carried the highest penalty. It required the jurors to find motive behind the offer. Attorney Cashman’s tactic of comparing it to an insurance settlement was proper.
The petitioner’s claims in 9k. and 9 l . fail. Civil Jury Instructions § 4.1-8 would open the criminal law instructions up to unnecessary length, additional terms and questions of the lower standard of proof. Trial counsel is not ineffective for avoiding novel legal theories. Ledbetter v. Commissioner of Correction, 275 Conn. 451, 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). The petitioner elicited evidence from Attorneys Cashman and Kestenband about the claims that only two specific instructions should have been made: voluntary intoxication and "offer" to contract. Neither tactical decision by Attorney Cashman fell below the level of effective trial counsel. Although the petitioner cites State v. Lewis, 220 Conn. 602, 618-19, 600 A.2d 1330 (1991), State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990), and State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986), one duress and two self-defense cases do not make "theory of the case" instruction at the petitioner’s trial. The only "theory of the case" instruction available and wisely not requested was on involuntary intoxication. Trial judges do not give generalized theory of the case instructions for either side. Rather they provide specific instructions on elements of statutes and principles of law. See, e.g., State v. Bellamy, 323 Conn. 400, 429, 147 A.3d 655 (2016); State v. Butler, 207 Conn. 619, 636, 543 A.2d 270 (1988) ("trial courts have a duty ‘to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict"); State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980).
The habeas trial of March 20, 2018, also covered petitioner’s claims of ineffectiveness of appellate counsel in paragraphs 12 through 14 of the revised amended petition. The petitioner did not submit a transcript of the appellate argument or a copy of the appellant’s brief. Haywood v. Commissioner of Correction, 153 Conn.App. 651, 664, 105 A.3d 238, cert. denied, 315 Conn. 908, 105 A.3d 235 (2014).
"It is axiomatic that, in order to establish a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish both deficient performance and the resulting prejudice. See Mozell v. Commissioner of Correction, 87 Conn.App. 560, 562, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005). The performance prong requires proof that appellate counsel’s performance fell below an objective standard of reasonableness. Id., 563. There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Just as the decision of trial counsel not to object to certain evidence is a matter of trial tactics, not evidence of incompetency; Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985); 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 presumption of reasonable professional judgment. Orellana v. Commissioner of Correction, 135 Conn.App. 90, 99, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012). This is particularly apt because our courts have frequently chided appellate counsel for not exercising more discriminating judgment in selecting which claims to present on appeal, so as not to dilute the strength of strong arguments by forcing the court to consider weak ones. See, e.g., id., 98; Johnson v. Commissioner of Correction, supra, 131 Conn.App. 809; DaEria v. Commissioner of Correction, 107 Conn.App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).
"The prejudice prong requires proof that, had the prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal. Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808. A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel. Crawley v. Commissioner of Correction, 141 Conn.App. 660, 665, 62 A.3d 1138, cert. denied, 308 Conn. 946 (2013)." Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 222-23, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
"[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ... The right to counsel is not the right to perfect representation ... [Although] an appellate advocate must provide effective assistance, he 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 central 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 the 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 unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008). See also Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808-09.
At the habeas trial Attorney Billings testified credibly as to his approach to, and diligence in, the petitioner’s appeal. He eschewed attacking the breach of peace conviction and concentrated on the two felony convictions. As indicated earlier in this opinion, the petitioner used "fighting words." Attacking breach of peace on its alleged constitutional overbreadth finds no support in the petitioner’s citationless lexicon. And since its 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 conviction that has gone completely unchallenged. Adding a breach of peace conviction will not markedly darken the petitioner’s criminal record as revealed in the sentencing transcript. Respondent’s Exhibit D.
The petitioner cites no authority for his claim of overbreadth of the bribery and breach of peace statutes. Appellate counsel’s briefs logically pursue three claims including two on the bribery conviction: vagueness and insufficiency of the evidence. Petitioner’s Exhibits 1 and 2. His third attack was upon the sufficiency of the identification evidence for the Part B sentence enhancement. Again he employed well-reasoned and researched lines of argument. Unfortunately for the petitioner all three arguments were rejected by the Appellate Court in State v. Davis, supra . Appellate counsel 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. See, e.g., Orellana v. Commissioner of Correction, supra, 135 Conn.App. 99; Synakorn v. Commissioner of Correction, 124 Conn.App. 768, 775, 6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011) ("Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at a lack of confidence in any one [issue] ... [M]ultiplying assignments of error will dilute and weaken a good case and will not save a bad one." [Internal quotation marks omitted.] ).
The only other area of possible attack was on the admissibility of the petitioner’s blood test. As discussed earlier in this decision concerning the effectiveness of trial counsel, the evidence in the criminal trial does not lead this court to find that Officer Magrey’s decision to have the petitioner transported to the hospital was in any way a pretext. Absent that, Attorney Billings was not ineffective for not pursuing an attack on the blood results. And the petitioner fails to establish the second prong of Strickland as well. Assumptions, suspicion of the police and claims not based on the evidence in the jury or habeas trials do not win the day. The petitioner failed to call the EMT or any of the hospital medical staff to counter the strong evidence of medical necessity in respondent’s exhibit E.
Failing to challenge the evidence of Jonathan Oakes’ hearsay admitted during the state’s case was not ineffective when Attorney Billings was faced with the fact that Oakes testified as the petitioner’s star witness and said that he was the driver at the time of the accident. And it would not have affected the outcome of the appeal. Attorney Cashman testified at the habeas trial that since Oakes’ guilty plea did not contain an admission that he had lied in his statement to the police (see Petitioner’s Exhibit 10), he decided to call Oakes as a witness. See, e.g., State v. Thompson, 305 Conn. 412, 422-23, 45 A.3d 605 (2012) ("... if a witness’ silence is procured by the defendant himself, whether by chicanery, ... by threats, ... or by actual violence or murder, ... the defendant cannot then assert his confrontation clause rights in order to prevent prior grand jury testimony of that witness from being admitted against him. Any other result would mock the very system of justice the confrontation clause was designed to protect ... Though justice may be blind it is not stupid. [Internal citations and quotation marks omitted.]"), citing and quoting State v. Henry, 76 Conn.App. 515, 532-33, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003); State v. Santiago, 245 Conn. 301, 315-16, 715 A.2d 1 (1998) (suggesting that, although waiver of rights not personal to defendant may be implied as well as made by counsel, knowing, intelligent and voluntary waiver of rights personal to defendant must be made expressly by defendant himself); State v. Jarzbek, 204 Conn. 683, 698, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988) ("A defendant may waive his right of confrontation in a number of ways, such as by his voluntary and deliberate absence from trial[,] ... by disruptive conduct which requires his removal from the courtroom[,] ... or by causing a witness to be unavailable for trial for the purpose of preventing that witness from testifying." [Internal citations omitted] ); State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986) (defendant waived right to confront witness by not to cross examining on motive, interest or bias).
Here, Oakes’ testimony was presented by the defense, in support of the defense, and a confrontation violation, if any would have occurred by Officer Magrey’s testimony about Oakes’ statements prior to his testimony as a defense witness, should be treated as waived. To hold otherwise would make a mockery of the confrontation clause.
The petitioner claims an improper ruling by the trial court concerning the victim’s testimony as to what was in the petitioner’s mind when he said, "Let’s settle this like men." The petitioner fails to cite to the Code of Evidence or the common law. During the jury trial Attorney Cashman objected on the ground of improper speculation. The petitioner also fails to cite any controlling case which would make the ruling, if erroneous, of such magnitude as to effect the outcome of his direct appeal. Nor does he even argue that he was prejudiced by appellate counsel not raising the claim on direct appeal. Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.
It is so ordered.
[The Prosecutor]: Okay. And did he talk to you about the victim’s vehicle?
[Magrey]: He had mentioned, not specifically about, like, damage to the vehicle or anything like that.
[The Prosecutor]: Yeah.
[Magrey]: But he had mentioned that he had spoken with the victim.
[The Prosecutor]: Okay. And what did he say?
[Magrey]: He said that he had offered to buy his car for him and not have police involved.
[The Prosecutor]: All right. And specifically said, keep the police out not have the police involved?
[Magrey]: Something to that effect. Yes.