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*********************************************** 
CARMINE KELLMAN v. COMMISSIONER OF

CORRECTION

(AC 39429)

Sheldon, Elgo and Mihalakos, Js.

Syllabus

The petitioner, who previously had been convicted of, inter alia, murder in

connection with the shooting death of the victim, sought a writ of

habeas corpus, claiming that his trial counsel, S, had provided ineffective

assistance. The habeas court rendered judgment denying the habeas

petition, concluding that the petitioner had failed to prove that he was

denied the effective assistance of trial counsel. Thereafter, on the granting of certification, the petitioner appealed to this court. Held:

1. The petitioner could not prevail on his claim that S provided ineffective

assistance by failing to meaningfully present and explain a pretrial plea

offer from the state; the habeas court’s finding that the petitioner failed to

demonstrate that he was prejudiced by his counsel’s allegedly deficient

performance during pretrial plea negotiations was not clearly erroneous,

as the habeas court did not find credible the petitioner’s testimony

regarding whether a plea deal was presented or meaningfully explained

to him, and the petitioner failed to establish that it was reasonably

probable that he would have accepted the plea offer.

2. The habeas court did not err in determining that the petitioner failed to

establish his claim that S was ineffective by employing a deficient trial

strategy that pursued an extreme emotional disturbance defense at trial,

without consulting with an expert on that defense prior to trial: that

court’s finding that S’s decision not to retain an expert witness in pursuing the extreme emotional disturbance defense was a reasonable strategic decision was not clearly erroneous and was supported by the

evidence and testimony at the habeas trial, including S’s testimony that

he believed that it was not prudent to call an expert witness on that

defense when the petitioner and lay witnesses could testify to the same

evidence, that he was concerned that the jury would have looked unfavorably on an expert who was paid to testify on the petitioner’s behalf,

and that it was the only defense he had given the strength of the evidence

against the petitioner; moreover, even if S was deficient in his performance by failing to consult with an expert on the extreme emotional

disturbance defense, the petitioner did not show that S’s allegedly deficient performance prejudiced him, as there was substantial evidence in

the record that supported the jury’s guilty verdict, and, although the

petitioner speculated that the result might have been different had S

chosen to utilize an expert witness, the petitioner failed to demonstrate

that there was a reasonable probability that if S had consulted with or

called an expert witness during the criminal trial, the jury would have

had reasonable doubt as to the petitioner’s guilt.

Argued September 14—officially released November 14, 2017

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, Oliver, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Stephen A. Lebedevitch, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state’s attorney,

with whom, on the brief, were Patrick J. Griffin, state’s

attorney, and Adrienne Russo, deputy assistant state’s

attorney, for the appellee (respondent).
Opinion

MIHALAKOS, J. The petitioner, Carmine Kellman,

also known as Carmi Kellman,1 appeals following the

habeas court’s granting of his petition for certification

to appeal from its judgment denying his petition for a

writ of habeas corpus. On appeal, the petitioner claims

that the habeas court improperly rejected his claims of

ineffective assistance of trial counsel. Specifically, he

asserts that his trial counsel, Richard Silverstein, rendered ineffective assistance because he (1) failed to

meaningfully present and explain the state’s pretrial

plea offers and (2) failed to consult with or present an

expert at the petitioner’s trial regarding the extreme

emotional disturbance defense. For the reasons set

forth herein, we affirm the judgment of the habeas

court.

The following facts and procedural history are relevant to our disposition of the petitioner’s claims. After

a jury trial, the petitioner was convicted of murder in

the first degree in violation of General Statutes § 53a54a, carrying a pistol without a permit in violation of

General Statutes § 29-35, and criminal violation of a

protective order in violation of General Statutes (Rev.

to 1993) § 53a-110b (a) (now § 53a-223).2 The petitioner

was sentenced to sixty years of incarceration for murder, one year concurrent for carrying a pistol without

a permit, and one year concurrent for criminal violation

of a protective order.

The petitioner’s conviction was the subject of a direct

appeal before this court. See State v. Kellman, 56 Conn.

App. 279, 742 A.2d 423, cert. denied, 252 Conn. 939, 747

A.2d 4 (2000). In affirming the petitioner’s conviction,

this court concluded that the jury reasonably could

have found the following facts. The petitioner and the

victim, Carmen Smith, began a two year romantic relationship in 1992, which was marked by repeated domestic incidents, breakups, and reconciliations. Id., 280.

Numerous complaints were lodged with the police by

the victim about the petitioner. Id. In July, 1993, after

an arrest based on such a complaint, the petitioner was

ordered by the victim to move out of her residence. Id.

The petitioner returned during a brief period of reconciliation, but was dispossessed permanently by the victim

later that year. Id., 280–81.

As the petitioner continued to pursue the relationship, his behavior became more hostile, and the domestic incidents increased in severity. Id., 281. In February,

1994, the petitioner was arrested outside the victim’s

residence after being pursued by the police. Id. Thereafter, the victim obtained a protective order that prohibited the petitioner from entering her home and from

restraining, harassing or contacting her. Id. The petitioner, however, continued to harass the victim on many

occasions. Id. On Saturday, March 12, 1994, the victim
and her sister went shopping, had dinner and went to

a club for the evening. Id. At approximately 2 a.m., on

March 13, 1994, they returned to the victim’s house,

where the petitioner was waiting in the driveway. Id.

As the petitioner approached the two women, he pulled

out a gun, chased the victim down a walkway alongside

the building, and shot her five times, causing her

death. Id.

The following day, the petitioner admitted to a friend

that he had been involved in the shooting that led to

the victim’s death. Id., 282. After his arrest, he claimed

that the shooting was an unintended mistake. Id. At

his criminal trial, the petitioner claimed that he was

suffering from extreme emotional disturbance and that

he was intoxicated when he shot the victim. Id.

Following his conviction, the petitioner, on May 15,

2013, filed a pro se petition for a writ of habeas corpus,

alleging that his trial attorney, Silverstein, provided ineffective assistance of counsel. Specifically, the petitioner

alleged that Silverstein advised him to reject a thirty

year plea agreement because he could win the case at

trial. On the basis of this advice, he rejected the state’s

offer, went to trial, and was convicted. On June 18,

2015, the petitioner, represented by appointed counsel,

filed an amended petition, in which he alleged that

he was denied his constitutional right to the effective

assistance of counsel as a result of Silverstein’s (1)

deficient performance in plea negotiations and (2) failure to consult with an expert on the extreme emotional

disturbance defense.3 The petitioner first claimed that:

‘‘(a) [Silverstein] failed to inform the petitioner that the

state made a pretrial offer in an attempt to resolve

the case; (b) [Silverstein] failed to meaningfully and

adequately advise the petitioner with respect to the

state’s pretrial offer; (c) [Silverstein] rejected the state’s

pretrial offer without the authorization or consent of

the petitioner; and/or (d) assuming [Silverstein] did

relay the offer to the petitioner, he advised the petitioner to reject the offer and proceed to trial.’’ The

petitioner claimed that but for his counsel’s deficient

performance relating to the plea offers, ‘‘there is a reasonable probability that . . . the results of the proceedings would have been more favorable to [him] in

that [he] would have accepted the state’s offer, and the

trial court would have imposed the sentence pursuant

to the offer.’’ Second, the petitioner claimed that Silverstein pursued an unreasonable legal strategy in presenting the extreme emotional disturbance affirmative

defense, more particularly, by ‘‘fail[ing] to obtain the

opinion of an expert or get the [petitioner] evaluated

by an expert,’’ and that this ‘‘unreasonable legal strategy

prejudiced the petitioner.’’

The habeas trial was held on November 18, 2015, and

March 2, 2016. The petitioner presented testimony from

Silverstein, the prosecutor in the petitioner’s criminal
trial, Attorney James Dinnan, and the petitioner’s expert

in criminal defense, Attorney J. Patten Brown. The petitioner also testified. On June 21, 2016, the habeas court,

Oliver, J., issued a written memorandum of decision

denying the petition for a writ of habeas corpus, finding

that the petitioner had failed to prove that he was denied

the effective assistance of trial counsel under the twopronged test set forth in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The

habeas court granted the petition for certification to

appeal. This appeal followed. Additional facts and procedural history will be introduced as necessary.

We first set forth the standard of review and legal

principles applicable to the petitioner’s appeal. ‘‘Our

standard of review of a habeas court’s judgment on

ineffective assistance of counsel claims is well settled.

The habeas court is afforded broad discretion in making

its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The

application of the habeas court’s factual findings to the

pertinent legal standard, however, presents a mixed

question of law and fact, which is subject to plenary

review. . . . Therefore, our review of whether the facts

as found by the habeas court constituted a violation of

the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Citation omitted; internal

quotation marks omitted.) Sanders v. Commissioner

of Correction, 169 Conn. App. 813, 822, 153 A.3d 8

(2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

It is well established that ‘‘[a] criminal defendant is

constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . . This right arises under the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the

right to the effective assistance of counsel.’’ (Internal

quotation marks omitted.) Horn v. Commissioner of

Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016).

‘‘A claim of ineffective assistance of counsel as enunciated in Strickland v. Washington, supra, 466 U.S. 668,

consists of two components: a performance prong and

a prejudice prong. To satisfy the performance prong

. . . 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.) Griffin v. Commissioner of

Correction, 137 Conn. App. 382, 387, 47 A.3d 956, cert.

denied, 307 Conn. 921, 54 A.3d 182 (2012). ‘‘Our

Supreme Court has stated that the performance inquiry

must be whether counsel’s assistance was reasonable

considering all the circumstances, and that [j]udicial

scrutiny of counsel’s performance must be highly deferential.’’ (Internal quotation marks omitted.) Id., quoting
Ham v. Commissioner of Correction, 301 Conn. 697,

706, 23 A.3d 682 (2011).

‘‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the

judgment. . . . To satisfy the second prong of Strickland, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that, as

a result of his trial counsel’s deficient performance,

there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . .

The second prong is thus satisfied if the petitioner can

demonstrate that there is a reasonable probability that,

but for that ineffectiveness, the outcome would have

been different.’’ (Internal quotation marks omitted.)

Horn v. Commissioner of Correction, supra, 321 Conn.

776. ‘‘In making this determination, a court hearing an

ineffectiveness claim [based on counsel’s failure to

investigate] must consider the totality of the evidence

before the judge or the jury. . . . Some errors will have

had a pervasive effect on the inferences to be drawn

from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.

Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support.’’

(Internal quotation marks omitted.) Id., quoting Strickland v. Washington, supra, 466 U.S. 695–96.

A petitioner’s claim will ‘‘succeed only if both prongs

are satisfied. . . . 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 unworkable.’’ (Citation omitted;

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 can find against a petitioner, with respect to a

claim of ineffective assistance of counsel, on either the

performance prong or the prejudice prong, whichever

is easier.’’ Ham v. Commissioner of Correction, supra,

301 Conn. 704.

I

The petitioner first claims that Silverstein provided

ineffective assistance either by failing to inform him

that the state had made a pretrial plea offer, or, alternatively, if he was informed of the offer, that Silverstein

did not meaningfully explain the plea offer to him.

The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether

to plead guilty is a critical stage in criminal proceedings

for purposes of the sixth amendment right to effective

assistance of counsel. ‘‘To show prejudice from ineffective assistance of counsel where a plea offer has lapsed

or been rejected because of counsel’s deficient perfor-
mance, defendants must demonstrate a reasonable

probability they would have accepted the earlier plea

offer had they been afforded effective assistance of

counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court

refusing to accept it, if they had the authority to exercise

that discretion under state law. To establish prejudice

in this instance, it is necessary to show a reasonable

probability that the end result of the criminal process

would have been more favorable by reason of a plea

to a lesser charge or a sentence of less prison time.’’

Missouri v. Frye, 566 U.S. 134, 147, 132 S. Ct. 1399, 182

L. Ed. 2d 379 (2012); see also Padilla v. Kentucky, 559

U.S. 356, 364, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)

(‘‘[b]efore deciding whether to plead guilty, a defendant

is entitled to the effective assistance of competent counsel’’ [internal quotation marks omitted]).

The petitioner claims that Silverstein’s performance

during the pretrial plea negotiations fell below objectively reasonable standards. On this issue, the habeas

court determined only that the petitioner had not met

his burden on the prejudice prong. We need not address

the performance prong of Strickland v. Washington,

supra, 466 U.S. 687, on appeal because the habeas court

did not address the performance of the petitioner’s

counsel as it relates to pretrial plea negotiations, nor

was the habeas court required to do so. ‘‘[A] court

need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies.

. . . If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice . . . that

course should be followed.’’ (Internal quotation marks

omitted.) State v. Brown, 279 Conn. 493, 525–26, 903

A.2d 169 (2006); see also Elsey v. Commissioner of

Correction, 126 Conn. App. 144, 162, 10 A.3d 578, cert.

denied, 300 Conn. 922, 14 A.3d 1007 (2011) (‘‘[b]ecause

both prongs . . . [of the Strickland test] must be established for a habeas petitioner to prevail, a court may

dismiss a petitioner’s claim if he fails to meet either

prong’’ [internal quotation marks omitted]).

The petitioner’s claim concerning whether a plea deal

was presented or meaningfully explained to him, specifically, whether this prejudiced him, depends entirely

on the habeas court’s determinations on credibility, to

which we defer on appeal. ‘‘The habeas judge, as the

trier of the facts, is the sole arbiter of the credibility of

witnesses and the weight to be given to their testimony.’’

(Internal quotation marks omitted.) Vidro v. Commissioner of Correction, 105 Conn. App. 362, 366, 938 A.2d

607, cert. denied, 286 Conn. 908, 944 A.2d 982 (2008).

‘‘It is well established that a reviewing court is not in

the position to make credibility determinations. . . .

This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to
the [trier of fact’s] assessment of the credibility of the

witnesses based on its firsthand observation of their

conduct, demeanor and attitude.’’ (Internal quotation

marks omitted.) Lewis v. Commissioner of Correction,

117 Conn. App. 120, 125–26, 977 A.2d 772, cert. denied,

294 Conn. 904, 982 A.2d 647 (2009). Because the petitioner’s claim is premised entirely on issues of credibility, he cannot prevail.

In the present case, the habeas court summarily dismissed the petitioner’s testimony as ‘‘loose, equivocal

and unconvincing,’’ based on his equivocations regarding whether he was made aware of the plea offer, both

in his conflicting habeas petitions and his testimony at

the habeas trial. The following exchange between the

petitioner and the court highlights the inconsistencies

between the two petitions for writ of habeas corpus:

‘‘[The Court]: . . . Were you ever aware of an offer

from the prosecutor?

‘‘[The Petitioner]: Never aware of the offer.

‘‘[The Court]: I’m sorry?

‘‘[The Petitioner]: Never aware of the offer, no. . . .

‘‘[The Court]: Did anyone ever tell you that there was

an offer from a prosecutor short of going to trial and

being convicted?

‘‘[The Petitioner]: Well, like I mentioned, the prosecutor, Silverstein, mentioned it was an offer, but he never

told me what the offer was. . . .

‘‘[The Court]: Okay. Did Attorney Silverstein ever tell

you—so is it fair to say that you never heard a number

until you heard the number thirty from someone?

‘‘[The Petitioner]: Yeah, I never heard a number.

‘‘[The Court]: And you never heard a number from

Attorney Silverstein, ever?

‘‘[The Petitioner]: Never.

‘‘[The Court]: Where did you get the number you

wrote in your self-represented petition? Let’s see here.

You wrote . . . ‘I claim Attorney Silverstein advised

me to reject a thirty year plea agreement and he advised

me that he can win my case at trial.’ What do you mean

when you wrote that? It seems pretty clear to me, but

what did you mean when you wrote that?

‘‘[The Petitioner]: I wrote it because, after I found

out that the thirty, thirty-five years was the . . . you

know, was the offer, which I learned from another attorney before . . . before [Attorney Ashley] Hopkins.

‘‘[The Court]: Okay. And you said something just now

that’s not what you wrote. You said thirty to thirtyfive. Who told you—well, why did you write, ‘I claim

Attorney Silverstein advised me to reject a thirty year

plea agreement.’ Why did you write that?
‘‘[The Petitioner]: [Attorney] Carpenter told me about

the plea offer . . . so that’s how I found out, through

[Attorney Jerry Rosenblum’s] records.4

‘‘[The Court]: Found out what?

‘‘[The Petitioner]: That there was . . . an offer.

[There] was an offer on the table.

‘‘[The Court]: Offer of what?

‘‘[The Petitioner]: Of thirty-five or thirty and the

forty. . . .

‘‘[The Court]: You said thirty, you said thirty-five and

you said forty. Tell me where all of this is coming from

inside your head, please.

‘‘[The Petitioner]: Well, she said that—she gave me

the same thing, that the prosecutor wanted fifty, the

judge wanted I guess forty, and they was willing—he

asked for thirty or thirty-five years.’’

To establish prejudice in a lapsed plea case, ‘‘a petitioner need establish only that (1) it is reasonably probable that, if not for counsel’s deficient performance, the

petitioner would have accepted the plea offer, and (2)

the trial judge would have conditionally accepted the

plea agreement if it had been presented to the court.’’

Ebron v. Commissioner of Correction, 307 Conn. 342,

357, 53 A.3d 983 (2012), cert. denied sub nom. Arnone

v. Ebron, 569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d

802 (2013).

In the present action, the petitioner has established

that the trial judge would have accepted the plea

agreement, because the trial judge participated in pretrial conferences in which the court indicated what

offers it might accept.5 The petitioner, however, has

not established that it was reasonably probable that he

would have accepted the plea offer. As the habeas court

noted, ‘‘[r]egarding prejudice, nearly two decades later,

the petitioner has still not testified that he would have

accepted an offer in the thirty to forty year range, indicating, ‘I don’t know.’ The twenty-five year sentence he

would have accepted was never available to him.’’ We

thus conclude that the habeas court’s finding that the

petitioner did not demonstrate prejudice was not

clearly erroneous.

II

The petitioner next claims that he received ineffective

assistance of counsel because of the allegedly deficient

trial strategy employed by Silverstein in pursuing the

extreme emotional disturbance affirmative defense at

trial. The petitioner claims that Silverstein was deficient

in selecting and presenting this defense, and had he

consulted an expert prior to trial, he could have presented evidence to the jury that rose to the level of

extreme emotional disturbance. Alternatively, the petitioner argues that an expert would have persuaded Sil-
verstein not to pursue the defense at all, specifically

stating, ‘‘[a]n expert could help develop the themes of

the defense, or inform the attorney if there is an actual

basis for the [extreme emotional disturbance] defense

to be asserted.’’ On this issue, the habeas court discussed both the performance and prejudice prongs of

Strickland in determining that the petitioner had not

met his burden to prove ineffective assistance of counsel. We address each prong in turn.

‘‘To satisfy the performance prong [of the Strickland

test], a claimant must demonstrate that counsel made

errors so serious that counsel was not functioning as the

counsel guaranteed . . . by the [s]ixth [a]mendment.’’

(Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 713, 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). Inasmuch as

‘‘[c]onstitutionally adequate assistance of counsel

includes competent pretrial investigation’’; Siemon v.

Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981);

‘‘[e]ffective assistance of counsel imposes an obligation

[on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may

potentially lead to facts relevant to the defense of the

case.’’ (Internal quotation marks omitted.) Williams v.

Commissioner of Correction, 100 Conn. App. 94, 102,

917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d

140 (2007).

Similarly, the United States Supreme Court has

emphasized that a reviewing court is ‘‘required not simply to give [the trial attorney] the benefit of the doubt

. . . but to affirmatively entertain the range of possible

reasons . . . counsel may have had for proceeding as

[he] did . . . .’’ (Citations omitted; internal quotation

marks omitted.) Cullen v. Pinholster, 563 U.S. 170, 196,

131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011). ‘‘[S]trategic

choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than

complete investigation are reasonable precisely to the

extent that reasonable professional judgments support

the limitations on investigation. In other words, counsel

has a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s

judgments.’’ (Internal quotation marks omitted.) Gaines

v. Commissioner of Correction, 306 Conn. 664, 680, 51

A.3d 948 (2012).

The petitioner claims that Silverstein’s failure to call

an expert could not have been a reasonable tactical

decision because Silverstein failed to investigate the

usefulness of such an expert. We begin by noting that
there is no per se rule that requires a trial attorney to

seek out an expert witness. However, this court noted

that in some cases, ‘‘the failure to use any expert can

result in a determination that a criminal defendant was

denied the effective assistance of counsel.’’ (Internal

quotation marks omitted.) Stephen S. v. Commissioner

of Correction, 134 Conn. App. 801, 811, 40 A.3d 796,

cert. denied, 304 Conn. 932, 43 A.3d 660 (2012); see also

Lindstadt v. Keane, 239 F.3d 191, 201–202, 204 (2d

Cir. 2001) (holding that failure to consult an expert on

sexual abuse of children constituted inadequate assistance). This court has also determined that ‘‘[t]he failure

of defense counsel to call a potential defense witness

does not constitute ineffective assistance unless there

is some showing that the testimony would have been

helpful in establishing the asserted defense.’’ (Internal

quotation marks omitted.) Eastwood v. Commissioner

of Correction, 114 Conn. App. 471, 481, 969 A.2d 860,

cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009). Therefore, the burden is on the petitioner to show that an

expert would have been necessary to establish the

extreme emotional disturbance defense in this case.

The affirmative defense of extreme emotional disturbance, as described in State v. Elliot, 177 Conn. 1, 411

A.2d 3 (1979), allows the defendant to mitigate the

charge of murder to manslaughter if he can prove by

a fair preponderance of the evidence: ‘‘(a) the emotional

disturbance is not a mental disease or defect that rises

to the level of insanity as defined by the Penal Code;

(b) the defendant was exposed to an extremely unusual

and overwhelming state, that is, not mere annoyance

or unhappiness; and (c) the defendant had an extreme

emotional reaction to it, as a result of which there was

a loss of self-control, and reason was overborne by

extreme intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.’’ Id., 9.

The habeas court determined that the petitioner had

not presented sufficient evidence ‘‘to establish a reasonable probability that consultation with an expert or

presenting such an expert at trial would have been

helpful in asserting the [extreme emotional disturbance] defense.’’ Furthermore, the court found that Silverstein’s decision not to retain an expert witness in

pursuing the extreme emotional disturbance defense

was a reasonable strategic decision. Silverstein’s testimony indicated that he made a strategic decision in

choosing to pursue the extreme emotional disturbance

defense through the testimony of the petitioner and lay

witnesses, rather than an expert witness. Silverstein

testified that he did not find evidence of a clinical psychological issue, stating that ‘‘[the petitioner] never

made me aware of any background that he had suffered

from any type of [psychological issues] . . . . He told

me he was depressed, but it was about the relationship.

It wasn’t independent of the relationship.’’ From speak-
ing with many people who knew the petitioner, Silverstein learned that ‘‘he was in love with a woman

who didn’t love him, who was seeing other people, who

had a child that he had a very close bond with, who he

took care of, and that, in my mind, you know, he couldn’t

control the jealousy, the rage, the anger he was feeling

towards her.’’ On the basis of these interviews, Silverstein determined that he did not believe it would be

prudent to call an expert witness when the petitioner

and lay witnesses could testify to the same evidence.

Silverstein was also concerned that the jury would

look unfavorably on an expert who was paid to testify

on the petitioner’s behalf. He testified, ‘‘I had a way,

an idea how I was going to argue the case, and putting an

expert up there who I’d pay to say that he is depressed

is not going to help me or [the petitioner], in my mind.

. . . [I]f you’re calling an expert in on a psychological

type of thing or to testify about extreme emotional

distress . . . they know I’m paying them. Their conclusions are, you know, if not borne out by the facts,

don’t really help and it gives the state’s attorney an

opportunity to get up there and say, you know: He calls

in an expert who’s now going to tell you that he acted

under extreme emotional distress. He paid this expert.

The expert saw him nine months after the incident.

What else is the expert going to say?’’ On the basis of

this testimony, the habeas court properly found that

it was not objectively unreasonable for Silverstein to

choose not to call an expert for the extreme emotional

disturbance defense.

The court’s determination of reasonableness is also

supported by the record, specifically, the testimony of

Dinnan and Brown. When asked if the petitioner had

presented an expert in support of his extreme emotional

disturbance defense, Dinnan testified, ‘‘I don’t recall any

expert, which isn’t unusual for that particular defense.’’

When the court questioned him further on this, Dinnan

responded: ‘‘That’s just my experience. They put on

the facts surrounding it, the history of the particular

relationship, and that’s . . . again, that’s what I recall

happening in this particular case.’’ Furthermore, the

habeas court was not persuaded by the testimony of

the petitioner’s expert, Brown, as he stated it was unreasonable for Silverstein to fail to consult an expert in

this case, but admitted that he had never raised the

defense at trial and had only used it during pretrial

negotiations to advocate for a better deal for his client.6

The petitioner also claims that the defense itself was

an unreasonable trial strategy, and that if Silverstein

had consulted with an expert, he may not have pursued

the defense at all. But, as Silverstein testified, ‘‘it was

the only defense he had,’’ based on the strength of the

evidence against the petitioner and the state’s unwillingness to reduce the charge from murder to manslaughter.

Facing this scenario, the habeas court found that Sil-
verstein’s decision to move forward with the extreme

emotional disturbance defense was a ‘‘necessity, compelled by an offer of an unacceptably lengthy prison

term based on compelling evidence of guilt.’’ Therefore,

we conclude that the habeas court’s finding that ‘‘the

defense presented by underlying counsel was not unreasonable in light of all of the evidence’’ was not

clearly erroneous.

Even if Silverstein was deficient in his performance

by failing to consult with an expert on the extreme

emotional disturbance defense, the petitioner did not

show that this allegedly deficient performance prejudiced him. ‘‘It is well established that a petitioner in a

habeas proceeding cannot rely on mere conjecture or

speculation to satisfy either the performance or prejudice prong but must instead offer demonstrable evidence in support of his claim.’’ (Internal quotation

marks omitted.) Lopez v. Commissioner of Correction,

142 Conn. App. 53, 59, 64 A.3d 334 (2013); see also

Crawford v. Commissioner of Correction, 285 Conn.

585, 599, 940 A.2d 789 (2008) (petitioner’s burden not

met by speculation but by demonstrable realities); Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d

71 (2005) (‘‘[s]peculation and conjecture have no place

in appellate review’’).

We conclude that the petitioner has failed to demonstrate that there is a reasonable probability that if Silverstein had consulted with or called an expert witness

during the criminal trial, the jury would have had reasonable doubt as to the petitioner’s guilt. The petitioner

has simply speculated that the result might have been

different had Silverstein chosen to utilize an expert

witness. We also note the substantial evidence in the

record that would support the jury’s guilty verdict. Specifically, the victim and the petitioner had a long history

of domestic violence incidents, and witnesses testified

at trial that the victim screamed in terror as the petitioner pursued her before shooting her five times at

close range. State v. Kellman, supra, 56 Conn. App.

281. The petitioner subsequently confessed to firing

the shots that killed the victim to numerous people,

including members of the New Haven Police Department. On the basis of the strength of the evidence presented to the jury, we conclude that the petitioner has

not met his burden of showing that the jury verdict

might have been different without counsel’s allegedly

deficient performance.

On the basis of our review of the record, we hold

that the court’s factual findings and legal conclusions

are sufficiently supported by the record. We therefore

hold that the court did not err in determining that the

petitioner failed to prove ineffective assistance of counsel. Accordingly, we conclude that the court properly

denied the petition for a writ of habeas corpus.

The judgment is affirmed.
In this opinion the other judges concurred.

1 While the habeas pleadings refer to the petitioner as ‘‘Carmine,’’ the

petitioner testified at the habeas trial that his first name is ‘‘Carmi,’’ and

this court’s direct appeal decision refers to him as ‘‘Carmi.’’ See State v.

Kellman, 56 Conn. App. 279, 742 A.2d 423, cert. denied, 252 Conn. 939, 747

A.2d 4 (2000).

2 The petitioner was also acquitted of one count of stalking in the first

degree in violation of General Statutes § 53a-181c (a) (2).

3 The petitioner’s amended habeas petition also included a claim of ineffective assistance of counsel regarding failure to apply for sentence review,

but that issue has not been raised on appeal.

4 Rosenblum was initially appointed to represent the petitioner at the time

of his arraignment, but he became ill and was replaced by Silverstein prior

to trial. Carpenter represented the petitioner in his first habeas petition,

filed in 2011.

5 At the habeas trial, Dinnan testified that Judge Damiani conducted pretrial negotiations and made an offer that he indicated he would accept,

stating in relevant part that ‘‘[t]he procedure that occurred is we had a

pretrial conference with Judge . . . I believe it was Judge Damiani. I had

made an offer of fifty years that would encompass all the charges. . . .

Judge Damiani indicated he would do forty years to encompass all the

charges, and then . . . Rosenblum went downstairs into the lockup to discuss the matter with [the petitioner], and it was not accepted.’’

6 During the habeas proceeding, the following exchange occurred between

the respondent’s counsel and Brown:

‘‘[The Respondent’s Counsel]: Do you recall when about the first case

was that you raised an [extreme emotional disturbance] defense?

‘‘[Brown]: Oh, I mean, the first case would have been . . . . I don’t recall

exactly. . . . A couple of them I can tell you I know I hired an expert, and

the expert basically said there’s nothing here, so I just kind of tried to bluff

my way through it and get a better deal, but, so those weren’t all that went

to trial or anything like that.

‘‘[The Respondent’s Counsel]: Okay. So these were potential defenses that

you were exploring pretrial?

‘‘[Brown]: Correct. Correct.

‘‘[The Respondent’s Counsel]: How many extreme emotional disturbance

defenses did you raise at—have you raised at trial?

‘‘[Brown]: At trial—well, I’ve only raised them at pretrial. I haven’t raised

them at trial, and we’ve been able to work it out once we disclose the

expert report.’’