Carpenter v. Commissioner of Correction , 171 Conn. App. 758 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
BETH ANN CARPENTER v. COMMISSIONER
OF CORRECTION
(AC 38139)
DiPentima, C. J., and Keller and Calmar, Js.
Argued October 18, 2016—officially released March 28, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Norman A. Pattis, with whom was Brittany B. Paz,
for the appellant (petitioner).
Michael J. Proto, assistant state’s attorney, with
whom, on the brief, was Kevin T. Kane, chief state’s
attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Beth Ann Carpen-
ter, appeals from the judgment denying her amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court erred in denying her
claims of ineffective assistance of counsel with respect
to (1) her lost opportunity to pursue a plea bargain and
(2) the exclusion of expert witness testimony regarding
codependency syndrome. We disagree, and affirm the
judgment of the habeas court.
In State v. Carpenter, 275 Conn. 785, 882 A.2d 604(2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164
L. Ed. 2d 309 (2006), our Supreme Court set forth the
following facts: ‘‘On March 10, 1994, at approximately
7:30 p.m., travelers on Interstate 95 discovered the body
of the victim, Anson B. ‘Buzz’ Clinton III, lying in the
roadway of exit seventy-two, known as the Rocky Neck
connector, in the town of East Lyme. The victim had
died as a result of multiple gunshot wounds to his head
and upper body.
‘‘In 1992, the victim met the defendant’s sister, Kim
Carpenter, at a bar where he performed as an exotic
dancer. At the time, Kim and her two year old daughter,
Rebecca Carpenter, lived with the defendant and their
parents, Richard Carpenter and Cynthia Carpenter, at
the Carpenters’ home in Ledyard. Shortly after Kim met
the victim, however, she moved out of the Carpenters’
home and went to live with the victim at his parents’
home in Old Lyme, showing no apparent concern for
Rebecca and leaving her in the care of the Carpenters
for significant periods of time.
‘‘Thereafter, Cynthia Carpenter and the defendant,
an attorney licensed to practice law in Connecticut,
filed an application in the Probate Court seeking Kim’s
removal as guardian of Rebecca on the ground that Kim
had abandoned Rebecca when she went to live with
the victim. Cynthia Carpenter also filed a separate appli-
cation for immediate temporary custody of Rebecca.
According to the applications, Rebecca was develop-
mentally delayed and required special care that Kim
was not providing.
‘‘In October, 1992, the court issued an ex parte order
granting Cynthia Carpenter immediate temporary cus-
tody of Rebecca. The court also appointed a guardian
ad litem to represent Rebecca’s interests. In December,
1992, following an investigation by the department of
children and families and upon the recommendation of
the guardian ad litem, the Probate Court reversed the
temporary order and returned guardianship and cus-
tody of Rebecca to Kim after she took certain court-
ordered steps to improve her parenting skills.
‘‘In January, 1993, Kim married the victim. Through-
out that year, Cynthia Carpenter and the defendant con-
concerning guardianship of Rebecca and related visita-
tion issues. The defendant was motivated to assist her
mother because she was concerned that Kim was not
providing Rebecca with proper care and attention. She
also believed that the victim was abusive toward Kim
and Rebecca and that Kim was powerless to protect
Rebecca from harm. In addition, she was distressed by
reports that the victim might leave Connecticut with
Kim and Rebecca and that she and the Carpenters no
longer would be able to see the child.
‘‘In November, 1992, Haiman Clein hired the defen-
dant as an associate in his law firm, Clein and Frasure.
In 1993, the defendant moved out of her parents’ home
and into an apartment in Norwich. At the end of Novem-
ber, 1993, the defendant, who was thirty years old, and
Clein, who was fifty-two years old, began a torrid affair.
Although Clein was married and the father of four chil-
dren, he once told the defendant that a book about
sexual obsession entitled ‘Damaged’ accurately
summed up his feelings about their relationship.
‘‘By early December, 1993, the defendant had become
so worried about Rebecca’s safety that she asked Clein
to kill the victim. Clein initially refused, but later told
the defendant that he knew someone by the name of
Mark Despres who might be willing to do the job, at
which point the defendant instructed Clein to make the
necessary arrangements.
‘‘When Clein subsequently met with Despres in his
New London office, he explained that he was involved
with a woman whose niece was being abused and that
the only way to stop the abuse was to kill the abuser.
After further discussion, Despres agreed to kill the vic-
tim for $8500. The defendant gave Clein the victim’s
purported home and work addresses, a description of
the victim’s car and a photograph of the victim, all of
which Clein passed on to Despres so that he would be
able to locate and identify the victim. Clein also gave
Despres approximately $2000 toward payment of his
fee.
‘‘In mid-February, 1994, Clein told Despres not to kill
the victim because he was upset with the defendant and
no longer wanted to help her. Although the defendant
initially appeared to accept Clein’s decision, she came
to him three or four weeks later in a state of hysteria
after hearing from her family that Rebecca had a burn
mark on her back and had been locked in the cellar by
the victim. In light of these alleged events, the defendant
told Clein that she wanted the victim killed and would
be willing to pay for it herself.
‘‘The following day, Clein invited Despres to his New
London office and asked him to proceed with the killing.
Despres indicated that he would do as Clein requested
for $5500, less than the agreed upon amount, but that
he wanted more money that day. Clein assented and
the two men went to the bank, where Clein withdrew
$1000 and gave it to Despres.
‘‘In early March, 1994, Despres learned through a
newspaper advertisement that the victim was selling
a tow truck. Despres called the victim, representing
himself as a buyer, and arranged to meet the victim.
On March 10, 1994, Despres, accompanied by his fifteen
year old son, Chris Despres, met the victim in the park-
ing lot of a Howard Johnson’s restaurant on Interstate
95. After a short conversation, the victim agreed to
show the tow truck to Despres, who followed the victim
northbound on the interstate to exit seventy-two. As
they exited, Despres flashed his headlights, causing the
victim to pull over and stop on the shoulder of the
roadway. Despres pulled over directly behind the vic-
tim. After the two men got out of their cars, the victim
approached Despres and asked what was going on.
Despres responded that he was looking for a gas station.
He then fired six shots at the victim. When headlights
appeared from behind, Despres jumped back into his
car and sped away to his home, driving over the body
as he fled from the scene. Moments later, the occupants
of the approaching vehicle discovered the victim’s body
lying on the roadway and notified the police.
‘‘Early the following morning, Cynthia Carpenter read
about the incident in the newspaper and telephoned
the defendant to inform her of the victim’s death. The
defendant immediately called Clein, who rushed to her
apartment in Norwich. When Cynthia Carpenter later
called the defendant to tell her that the Connecticut
state police were coming to the Carpenters’ home to
question them about the incident, the defendant and
Clein volunteered to come as well. Only after they
answered every question asked by the state police, did
the defendant and Clein depart.
‘‘The defendant continued her relationship with Clein
for the next eighteen months despite several unsuccess-
ful attempts to end it. In January, 1995, she resigned
from Clein’s law firm to look for another position. Nine
months later, she left the country to begin a new job
in London.
‘‘In December, 1995, the police issued a warrant for
Clein’s arrest and he fled from the state. Thereafter,
the defendant was contacted by Scotland Yard and
cooperated with British and United States law enforce-
ment authorities in apprehending Clein. Notwithstand-
ing his status as a fugitive, Clein wanted to stay in touch
with the defendant. Accordingly, he and the defendant
arranged to call each other at designated times, using
pay telephone numbers in the United States and Lon-
don. The defendant then informed the authorities of
the time and place of the prearranged calls. Clein was
arrested in February, 1996, during one such call from the
defendant to a telephone number in California. Upon his
arrest, Clein’s last words to the defendant were: ‘You
set me up . . . .’
‘‘Following Clein’s arrest, the defendant went to Dub-
lin, Ireland, and was accepted into a commercial law
program at University College Dublin. Although she
attended courses for about two weeks, she was unable
to continue because she could not afford the tuition.
She thus began working at a local pub to save the
required funds. In November, 1997, the defendant’s
plans were thwarted when she was arrested in connec-
tion with the victim’s murder and imprisoned in Ireland
for nineteen months.
‘‘In June, 1999, the defendant waived extradition, was
arraigned in New London Superior Court and was
charged with capital felony, murder as an accessory
and conspiracy to commit murder. After a two month
trial, the jury returned a verdict of guilty on all three
counts. The court merged the capital felony and murder
convictions and sentenced the defendant on those two
counts to a term of life imprisonment without the possi-
bility of release. On the count of conspiracy to commit
murder, the court sentenced the defendant to a term
of twenty years imprisonment to be served concurrently
with the preceding sentence.’’ (Footnote omitted.) Id.,789–94. Our Supreme Court affirmed the judgment of
conviction on direct appeal. Id., 789.
The petitioner initiated the present habeas corpus
action in January, 2013, and in her amended petition
for a writ of habeas corpus, the petitioner alleged, inter
alia, that she was unlawfully confined as a result of the
ineffective assistance of her trial counsel, Attorneys
Hugh Keefe and Tara Knight.1 With respect to those
claims, the petitioner alleged that her trial counsel failed
to adequately (1) counsel her regarding the advantages
of negotiating a plea disposition and pursuing such
negotiations, and (2) lay a proper evidentiary founda-
tion for an expert witness.
After trial, the habeas court denied the petitioner’s
amended petition for a writ of habeas corpus. The court
made credibility determinations and concluded that the
petitioner failed to satisfy her burden of proof under
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), relating to each of her
claims of ineffective assistance of counsel. With respect
to her first claim, that her trial counsel were ineffective
by failing to engage in plea negotiations on her behalf,
the court concluded that the trial counsel’s performance
was not deficient. In support of its conclusion, the court
reasoned that the petitioner was adamantly opposed to
engaging in plea negotiations throughout the state’s
prosecution, she explicitly instructed counsel not to
pursue a plea bargain, and the state was not interested
in negotiating a plea. The court also concluded that the
petitioner failed to demonstrate prejudice.
With respect to her second claim, that the petitioner’s
trial counsel were ineffective in failing to lay a proper
foundation for the introduction of expert testimony
regarding codependency syndrome through Dr. Robert
Novelly, the habeas court similarly concluded that the
petitioner had failed to satisfy her burden under Strick-
land. Specifically, the court concluded that, because
codependency syndrome was a novel concept at the
time of the petitioner’s trial, and counsel made a reason-
able attempt to introduce Novelly’s testimony by analo-
gizing codependency syndrome evidence to other
syndrome evidence, their performance was not defi-
cient. The court also explained that she failed to demon-
strate any resulting prejudice because, even if Novelly’s
testimony was introduced, evidence of codependency
syndrome was compatible with the state’s theory that
the petitioner persistently requested and pressured
Clein into arranging for the victim’s demise. The habeas
court subsequently granted the petition for certification
to appeal, and this appeal followed.
As a preliminary matter, we note the applicable stan-
dard of review and governing legal principles. Our stan-
dard of review of a habeas court’s judgment on
ineffective assistance of counsel 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.’’ (Inter-
nal quotation marks omitted.) Mozell v. Commissioner
of Correction, 291 Conn. 62, 76–77, 967 A.2d 41 (2009).
‘‘A criminal defendant’s right to the effective assis-
tance of counsel . . . is guaranteed by the sixth and
fourteenth amendments to the United States constitu-
tion and by article first, § 8, of the Connecticut constitu-
tion.’’ Small v. Commissioner of Correction, 286 Conn.
707, 712, 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). ‘‘In Strickland v. Washington, [supra, 466 U.S.
687], the United States Supreme Court established that
for a petitioner to prevail on a claim of ineffective assis-
tance of counsel, he must show that counsel’s assis-
tance 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
[by establishing a reasonable probability that, but for
the counsel’s mistakes, the result of the proceeding
would have been different]. . . . Furthermore, [i]n a
habeas corpus proceeding, the petitioner’s burden . . .
is not met by speculation . . . but by demonstrable
realities.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) Farnum v. Commis-
sioner of Correction, 118 Conn. App. 670, 675, 984 A.2d
1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d
119 (2010).
In order to prevail on the performance prong of
Strickland, the petitioner must demonstrate that her
‘‘counsel made errors so serious that [counsel] was not
functioning as the counsel guaranteed . . . by the
Sixth Amendment. . . . The petitioner must thus show
that counsel’s representation fell below an objective
standard of reasonableness considering all of the cir-
cumstances. . . . [A] court must indulge in 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.’’ (Citation omitted;
internal quotation marks omitted.) Axel D. v. Commis-
sioner of Correction, 135 Conn. App. 428, 433, 41 A.3d
1196 (2012).
‘‘To satisfy the prejudice prong for ineffective assis-
tance claims resulting from guilty verdicts, the peti-
tioner must demonstrate that there exists a reasonable
probability that, but for counsel’s unprofessional errors,
the result would have been different. . . . A reasonable
probability is one [that] is sufficient to undermine confi-
dence in the result.’’ (Internal quotation marks omitted.)
Orellana v. Commissioner of Correction, 135 Conn.
App. 90, 95–96, 41 A.3d 1088, cert. denied 305 Conn.
913, 45 A.3d 97 (2012). Guided by these principles, we
address in turn each of the petitioner’s ineffective assis-
tance of counsel claims.
I
The petitioner first claims that her trial counsel were
ineffective by failing to advise her of the advantages of
negotiating a plea disposition and by failing to secure
such a plea for her. We disagree, and conclude that
the habeas court did not err in determining that the
petitioner has failed to demonstrate either deficient
performance or resulting prejudice.
The following additional facts are relevant to this
claim. At the time of the petitioner’s criminal trial, Kevin
Kane was the state’s attorney for the New London judi-
cial district and prosecuted the charges against the peti-
tioner. Kane testified at the habeas trial that he recalled
that the petitioner was unwilling to make an unqualified
admission of guilt with respect to the solicitation of
the victim’s murder. Kane also testified that he was
uninterested in negotiating a plea without such an
unqualified admission of guilt, and that he would have
declined a proposed disposition by plea ‘‘that involved
as few as thirty years [of] incarceration.’’
The petitioner’s trial counsel, Keefe and Knight, also
testified at the habeas trial. Keefe confirmed Kane’s
account that the petitioner was uninterested in resolv-
ing her case by plea. Knight testified to similar events.
She explained that she had previously discussed with
the petitioner the possibility of entering a guilty plea,
but that the petitioner adamantly was opposed to enter-
taining a guilty plea even if the state’s attorney’s ‘‘recom-
mendation was as ridiculously low as five years to
serve.’’ On November 29, 2001, the petitioner memorial-
ized that opposition in writing.2
In her testimony, the petitioner gave a different
account. As the habeas court summarized in its memo-
randum of decision: ‘‘[The petitioner] stated that Attor-
neys Keefe and Knight never explained the elements
of capital felony murder to her, never mentioned the
possibility of a negotiated disposition, never informed
her how severe the sentence was likely to be if she
were convicted after trial, nor that lesser offenses were
available. She denies telling [trial] counsel that a guilty
plea was out of the question. She asserts that her written
statement to the contrary was produced by the fear
that her trial lawyers would abandon her if she refused
to sign the document. As recounted previously, at the
time of the homicide the petitioner was a trained lawyer,
albeit with limited criminal law experience.’’
Following the habeas trial, the court rejected the
petitioner’s claim, finding that Kane and Knight’s testi-
mony was credible and that the petitioner’s testimony
was ‘‘implausible on this point.’’ The court also relied
upon the petitioner’s unwillingness to engage in plea
negotiations, the state’s disinterest in plea bargaining
without an unqualified admission of guilt from the peti-
tioner, and the state’s refusal to accept a plea that
involved ‘‘as few as thirty years incarceration’’ in mak-
ing its decision.
A
We begin our analysis by examining the performance
prong of Strickland. The petitioner argues that her trial
counsel abandoned their role as counsel by failing to
pursue and obtain a plea bargain because they had an
affirmative obligation to do more than ratify their cli-
ent’s wishes. We disagree.
In her brief, the petitioner requests that this court
impose a rule requiring counsel to seek a plea offer
despite the petitioner’s expressed intent to not enter a
plea.3 We note that ‘‘ ‘there is no constitutional right to
plea bargain . . . .’ Weatherford v. Bursey, 429 U.S.
545, 561, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977).’’ State v.
Melendez, 291 Conn. 693, 704, 970 A.2d 64 (2009).
Despite that maxim, the petitioner requests that this
court adopt a rule that trial counsel is nonetheless
required to seek a plea bargain notwithstanding their
client’s expression to the contrary. We decline to adopt
such a rule.
The authority that the petitioner relies upon in
arguing that trial counsel ‘‘must do more than ratify’’
their client’s wishes, describes a narrow obligation
imposed upon defense counsel under specific circum-
stances, i.e., when the state has actually offered a plea.
Specifically, that authority explains that defense coun-
sel’s performance may be deficient by either providing
inadequate advice to the accused relating to the risk of
conviction and the advantages of entering a plea, or by
simply failing to convey the legitimate plea offer from
the state to the accused. See Missouri v. Frye, U.S.
, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (holding
that consideration of plea offers falls under Sixth
Amendment right to effective assistance of counsel and
that trial counsel has general duty to communicate for-
mal plea offers from state to accused); Lafler v. Cooper,
U.S. , 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012)
(holding that trial counsel’s ineffective advice to reject
plea offer can result in prejudice if there is reasonable
probability that offer would have been presented to the
court, terms would have been accepted by court, and
conviction or sentencing would have been less severe
had accused accepted plea offer); Boria v. Keane, 99
F.3d 492, 495 (2d Cir. 1996) (explaining that trial counsel
has obligation to advise client regarding whether partic-
ular plea to charge is desirable).
In the present case, there was no plea offer extended
by the state to either the petitioner or her trial counsel.
This is a critical factor because the cited authority is
premised on the notion that counsel’s performance can
be deficient depending on how they convey or advise
the accused regarding a legitimate plea offer. Simply
put, there was no opportunity for the petitioner’s trial
counsel to misadvise her with respect to a plea offer
from the state, because no offer was conveyed. As a
result, the cited authority does not control the case
before us.
Moreover, the petitioner clearly communicated, ver-
bally and in writing, that she had no intention to accept
responsibility for the charged offenses, and instructed
counsel to not pursue a plea. Suggesting, as the peti-
tioner does, that trial counsel should have pursued a
guilty plea, when their client maintained her innocence
and sought exoneration through a jury trial is illogical.
We agree with the habeas court that the petitioner’s
trial counsel ‘‘cannot be faulted for adhering to their
client’s strong desire to seek vindication through a jury
trial rather than accept even a minimal term of imprison-
ment in exchange for admitting guilt.’’ Accordingly, the
petitioner has not satisfied her burden under the perfor-
mance prong of Strickland.
B
Even if we were to assume that the petitioner had
satisfied her burden under the performance prong of
Strickland, she cannot establish that any resulting prej-
udice occurred. The petitioner is required to demon-
strate that, but for her trial counsel’s ineffective
assistance, there is a reasonable probability that she
would have accepted a plea offer or that the outcome
of her criminal proceeding would have been different.
See Anderson v. Commissioner of Correction, 313
Conn. 360, 376, 98 A.3d 23 (2014), cert. denied sub nom.
Anderson v. Semple, U.S. , 135 S. Ct. 1453, 191 L.
Ed. 2d 403 (2015). Because the petitioner has not satis-
fied that standard, her claim of ineffective assistance
of counsel fails.
In her appellate brief, the petitioner acknowledges
that ‘‘[b]ecause no plea offer was ever conveyed, it
cannot be said with any degree of certainty whether
[she] would have accepted anything the state offered
had she been adequately counseled.’’ In light of this
statement and the record before the habeas court, we
agree with that court that there is no reasonable likeli-
hood that the petitioner would have accepted a plea
offer, or that the state was even willing to convey such
an offer.
In arriving at our conclusion, we are mindful that
the habeas court found that ‘‘the petitioner adamantly
opposed any guilty plea even if the state’s attorney’s
recommendation was as ridiculously low as five years’’
and that even if the petitioner’s counsel made a plea
offer to the state, ‘‘Kane would have rejected any offer
proposed by the petitioner’s counsel which fell short
of a very lengthy prison sentence.’’ Those findings are
supported by the record before us. Further, there was
no indication from the record that either the petitioner
or the state was willing to engage in meaningful plea
negotiations, or that the parties would have agreed on
a plea bargain. Suggesting an alternative outcome is
pure speculation, therefore, the petitioner has not dem-
onstrated a reasonable probability that a different out-
come would have resulted but for the alleged deficient
performance. Accordingly, we reject the petitioner’s
claim of ineffective assistance of counsel.
II
The petitioner next claims that trial counsel were
ineffective for failing to lay a sufficient evidentiary foun-
dation to introduce expert testimony from Novelly
regarding codependency syndrome. Specifically, the
petitioner argues that her trial counsel’s failure to intro-
duce Novelly’s testimony was based upon poor prepara-
tion and incompetent presentation. We disagree.
The following additional facts are relevant to this
claim. At the petitioner’s criminal trial, the state sought
to introduce evidence ‘‘that the motive of this murder
was the custody dispute and the involvement of the
[petitioner] in this dispute with the victim.’’ The state
also sought to introduce details of the intimate relation-
ship between the petitioner and Clein that continued
following the commission of the crime. The petitioner
filed a motion in limine ‘‘to preclude any evidence about
the relationship between the [petitioner] and [Clein]
after March 10th of 1994.’’ In support of her motion, the
petitioner argued that the state intended to introduce
evidence of their relationship to exhibit ‘‘consciousness
of guilt,’’ but argued that their relationship was not
‘‘legitimate consciousness of guilt evidence.’’
In response, the state argued that it was not offering
the evidence to demonstrate the petitioner’s conscious-
ness of guilt, but instead, to prove the petitioner’s intent.
The state argued that the petitioner and Clein ‘‘hired
somebody to kill the [petitioner’s] brother-in-law. The
[petitioner], after having known, not only knew about
it beforehand, but her behavior afterwards is consistent
with her having wanted him to do that before it hap-
pened. You know, she didn’t say, I don’t want to have
anything more to do with you, I’m going to the police,
you killed my brother-in-law. She continues her affair
with him and maintains her relationship. This is
important circumstantial evidence of her knowledge
and intent before the crime was committed.’’ The court
subsequently denied the petitioner’s motion and
explained that the petitioner’s relationship with Clein
following the crime was ‘‘relevant to [her] intent [and]
to the elements of the conspiracy charge.’’
Also at the criminal trial, Clein testified, inter alia,
that the petitioner was the primary motivator for the
murder plot and that she requested that he make the
necessary arrangements. Clein also testified that he
spent a significant amount of time with the petitioner
in the months following the victim’s murder, and the
petitioner continued working in his office until early
1995. According to Clein, their relationship continued
until the petitioner left the country in the summer of
1995; thereafter, they frequently spoke over the phone.
In February, 1996, Clein was arrested while speaking
on the phone to the petitioner during a prearranged call.
The petitioner also testified at her criminal trial and
denied that she requested that Clein arrange for her
brother-in-law’s murder. She insisted that she had no
prior knowledge of Clein’s involvement until after the
murder, and claimed that Clein sought Despres’ cold-
blooded services without her knowledge or approval.
On cross-examination, the petitioner conceded that she
nevertheless remained romantically involved with Clein
following the murder and that she did not report Clein’s
involvement to the police, despite her knowledge
thereof.
In order to counter the argument that the petitioner’s
continued involvement with Clein suggested guilt, her
trial counsel attempted to explain that she suffered
from codependency syndrome. Knight later testified at
the habeas trial that the petitioner’s conduct in staying
with Clein was central to the state’s case and that, in
her view, ‘‘a jury might think it would be nonsensical
for somebody to stay with a man who just admitted
murdering somebody.’’ Trial counsel sought to intro-
duce Novelly’s testimony to ‘‘enlighten the jury as to
the behavioral characteristics exhibited by persons
engaged in a codependent relationship.’’ The primary
purpose of Novelly’s testimony was to show that code-
pendent individuals cannot break free from a destruc-
tive relationship, despite their knowledge that the
relationship is in fact destructive.
The petitioner’s trial counsel submitted an offer of
proof through Novelly on the issue of codependency
syndrome. The petitioner argued that Novelly would
testify ‘‘about codependency and how people . . .
become completely dependent on a relationship . . .
and cannot break away from it . . . .’’ In support of
their argument, Keefe and Knight analogized codepen-
dency syndrome to evidence of battered woman’s syn-
drome and abused child syndrome,4 which the state
objected to on the basis that the evidence was irrelevant
and that codependency syndrome was a novel topic.
After conducting a Porter hearing,5 the trial court
accepted the validity of Novelly’s scientific methodol-
ogy relating to codependency syndrome. The court,
however, sustained the state’s objections based upon
the petitioner’s failure to adduce evidence that Clein
and the petitioner were diagnosed with codepende-
ncy syndrome.
The petitioner’s trial counsel were confident, at the
time of her criminal trial, that an adequate foundation
was presented through previously admitted evidence
describing the petitioner’s and Clein’s relationship.
Their understanding of the evidence presented led them
to analogize the circumstances of this case to the neces-
sary evidentiary foundation required to admit other syn-
drome evidence, namely, battered woman’s syndrome
and abused child syndrome. As discussed subsequently
in this opinion, our Supreme Court later determined
that trial counsel’s logic was flawed on the petitioner’s
direct appeal.
A
We begin our analysis with the performance prong.
The petitioner argues that her trial counsel’s failure to
introduce Novelly’s testimony was due to poor prepara-
tion. We disagree, and conclude that the habeas court
did not err in determining that the petitioner failed to
demonstrate that her counsel’s performance fell below
a reasonable standard of professional competency. Spe-
cifically, we find support in the record indicating that:
(1) codependency syndrome was a novel concept at the
time of the petitioner’s criminal trial, (2) the petitioner’s
counsel reasonably analogized the evidence of codepen-
dency syndrome to that of evidence of other prevailing
syndromes, such as battered woman’s syndrome and
abused child syndrome, and (3) the inadmissibility of
Novelly’s testimony was not due to lack of preparation
or professional diligence.
First, it is clear that, at the time of the petitioner’s
trial there was scarce authority, if any, regarding the
admissibility of codependency evidence in the context
of this case. Our Supreme Court recognized as much
in affirming the petitioner’s convictions on direct
appeal. See State v. Carpenter, supra, 275 Conn. 806.
Our Supreme Court explained that ‘‘[i]ssues relating to
the evidentiary foundation necessary to establish the
relevance of expert testimony on syndrome behavior
have been raised infrequently in Connecticut and, to
our knowledge, only in the context of battered woman’s
syndrome.’’ Id. Our Supreme Court then stated that
‘‘before an expert may testify as to the common effects
of a codependent relationship on the behavior of the
partners, diagnostic or expert testimony must be intro-
duced to establish that the partners have personality
types conducive to the formation of a codependent
relationship.’’ (Footnote omitted.) Id., 811–12.
This discussion was in response to the manner in
which the petitioner’s trial counsel presented Novelly’s
testimony at trial. Our Supreme Court even went so far
as to identify what diagnostic or expert testimony may
be sufficient.6 We also recognize that our Supreme
Court likely would not have ventured into as much
detail had there been existing guidance on the issue of
codependency in the context of this case. To that end,
we agree with the habeas court that ‘‘[i]f the petitioner’s
direct appeal were merely a routine application of the
rules of evidence, such elaborate guidance would have
been unwarranted.’’ In particular, the habeas court rec-
ognized that ‘‘[trial] counsel, the prosecution, and the
trial court all regarded the admissibility of the features
of codependency syndrome as novel.’’ We thus con-
clude that evidence of codependency syndrome, in the
context of this case, was a novel concept at the time
of the petitioner’s jury trial.
Next, because the introduction of codependency syn-
drome evidence in this context was a novel concept,
the petitioner’s trial counsel reasonably relied upon
existing principles relating to the admissibility of other
syndrome evidence in their attempt to introduce Nov-
elly’s testimony. It is worth mentioning that trial coun-
sel, arguably, was not obligated to even put forth
evidence of codependency syndrome, because our
Supreme Court previously recognized that the failure
to advance a novel theory or argument has long been
recognized by state and federal courts to not constitute
ineffective performance of counsel. See Ledbetter v.
Commissioner of Correction, 275 Conn. 451, 461, 880
A.2d 160 (2005) (collecting cases), cert. denied sub nom
Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164
L. Ed. 2d 77 (2006). This suggests that the attempt to
advance the novel concept of codependency syndrome
exceeded ordinary professional standards.
Ultimately we decline to scrutinize trial counsel’s
performance for failing to anticipate, at the time of
the petitioner’s trial, that our Supreme Court would
delineate the proper evidentiary standard in the future.
Trial counsel understandably attempted to present Nov-
elly’s testimony under existing standards applicable to
other syndrome evidence. The rubric upon which trial
counsel relied provides that it is usually unnecessary
to rely upon diagnostic evidence or that the witness
even examine the alleged victim in order to admit syn-
drome evidence, as evidence that simply describes the
relationship is sufficient for an expert to describe the
general effects of battered or abused woman’s syn-
drome, or abused child syndrome. State v. Borrelli, 227
Conn. 153, 164–65, 629 A.2d 1105 (1993). Although the
trial court rejected their argument, the petitioner’s trial
counsel still recognized the negative inference from the
continuing relationship, attempted to introduce expert
testimony to mitigate the negative inference from
remaining with Clein, and proceeded under an estab-
lished rubric necessary to introduce evidence of bat-
tered woman’s syndrome and abused child syndrome.
Attempting to advance a novel concept that proves
unsuccessful does not necessarily constitute deficient
performance when there is a lack of established guid-
ance. See Ledbetter v. Commissioner of Correction,
supra, 275 Conn. 461.
Finally, we disagree that trial counsel’s performance
was the result of unpreparedness or due to a lack of
professional diligence. Rather, the petitioner was
required to show that the performance of her trial coun-
sel was so deficient and their errors so serious that
counsel were not functioning as counsel. Quintana v.
Warden, 220 Conn. 1, 4, 593 A.2d 964 (1991). Those
circumstances simply are not present here. Although
the habeas court recognized that the performance of
the petitioner’s trial counsel ‘‘appeared erroneous,’’
there was no established standard or legal norm to
introduce evidence of codependency syndrome at the
time of the petitioner’s trial. Given the authority at the
time, trial counsel nevertheless were prepared and ade-
quately presented Novelly’s testimony under an argua-
bly analogous evidentiary standard, albeit one that was
later determined not to apply.
In support of her argument that trial counsel were
ill-prepared, the petitioner argues that the evidentiary
foundation the court required in order to introduce
another witness, Dr. James Merikangas, should have
alerted trial counsel to the necessary foundation needed
to introduce Novelly’s testimony. This argument is,
however, without merit. For one, the petitioner has not
directed us to nor have we uncovered any authority
that suggests that a trial court’s evidentiary inquiry of
one witness has any bearing on the inquiry of another
witness. We are thus unwilling to accept the petitioner’s
argument, especially when the two witnesses are testi-
fying on unrelated topics.
In sum, the performance of the petitioner’s trial coun-
sel simply does not rise to the level of unprofessionalism
necessary to conclude that their performance was defi-
cient. Cf. Caro v. Calderon, 165 F.3d 1223, 1226 (9th
Cir. 1998) (explaining that counsel has obligation to
conduct investigation to determine what experts are
necessary and failure to do so may constitute ineffective
assistance), cert. denied sub nom Woodford v. Caro,
527 U.S. 1049, 119 S. Ct. 2414, 144 L. Ed. 2d 811 (1999);
Bloom v. Calderon, 132 F.3d 1267, 1271 (9th Cir. 1997)
(concluding counsel’s performance was deficient by
‘‘doing practically nothing’’ to prepare expert to testify),
cert. denied, 523 U.S. 1145, 118 S. Ct. 1856, 140 L. Ed.
2d 1104 (1988); Paine v. Massie, 339 F.3d 1194, 1202
(10th Cir. 2003) (identifying ineffective assistance of
counsel by failing to follow well-established, necessary
procedures). Instead, their performance was based
upon an inventive strategy that analogized the neces-
sary evidentiary bases for the introduction of evidence
of battered woman’s syndrome and abused child syn-
drome to the facts of the petitioner’s case. Thus, we
conclude that trial counsel’s performance did not fall
below a standard of professional reasonableness, based
upon the novelty of codependency evidence and coun-
sel’s reasonable reliance and presentation of existing
legal norms relating to the introduction of other syn-
drome evidence. See Michael T. v. Commissioner of
Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012) (‘‘the
right to counsel is the right to effective assistance, and
not the right to perfect representation’’); Quintana v.
Warden, supra, 220 Conn. 6 (‘‘Strickland requires only
reasonably effective assistance as measured by the stan-
dards of the bar generally’’).
B
We now turn to the prejudice prong of Strickland.
Even if we were to assume that the petitioner satisfied
her burden under the performance prong, her ineffec-
tive assistance of counsel claim nevertheless fails
because she cannot prove resulting prejudice. In
rejecting the petitioner’s argument pertaining to the
prejudice prong of Strickland, the habeas court
weighed the potential benefits that Novelly’s testimony
would have provided to the petitioner’s account of why
she had remained with Clein, primarily providing scien-
tific support to her claims. The habeas court reasoned
that although Novelly’s testimony would have helped
bolster the petitioner’s explanation of why she
remained with Clein, ‘‘other, unrelated evidence was far
more damning to the defense espoused at the jury trial.’’
The habeas court further explained that it was ‘‘highly
likely that a jury would have accepted the prosecution’s
position on Clein’s motivation under the codependency
syndrome rather than the defense [because] the state’s
reasoning was compatible with the syndrome behavior
and the testimony of Attorney [Jeremiah] Donovan and
Joseph Jebran, while the defense theory was contra-
dicted by testimony of those witnesses.’’
According to Clein, the petitioner was involved in
the solicitation of the victim’s murder. In fact, Clein
explained that he was acting in accordance with the
petitioner’s persistent demands that he arrange the vic-
tim’s demise. Clein stated that he carried through with
her demands as a proclamation of his love for her. This
pressure, according to Clein, led him to retain Despres
in an effort to end the victim’s life.
We recognize that the introduction of Novelly’s testi-
mony would have potentially bolstered the petitioner’s
claim that she remained with Clein following the mur-
der, despite her knowledge of his involvement, due to
codependent tendencies. On the other hand, Novelly’s
testimony would have potentially explained why Clein
obeyed the petitioner’s demands to facilitate her
brother-in-law’s murder, based upon those same tend-
encies to seek approval and display his love for the
petitioner by fulfilling her desires. Novelly’s testimony
would have supported either of these conclusions.
In addition, as the habeas court noted, at the petition-
er’s criminal trial, the jury was presented with damaging
evidence through Donovan and Jebran, two relatively
unbiased and neutral witnesses, that significantly
undermined the petitioner’s claim that she never
requested that Clein devise a plan to kill the victim.
Specifically, Donovan testified that Clein communi-
cated with him shortly after Despres’ arrest and
informed him that the petitioner frequently had urged
him to facilitate the victim’s murder and that he ‘‘was
so obsessed’’ with the petitioner. Further, Jebran, a
former boyfriend of the petitioner, testified that the
petitioner had ‘‘asked Jebran to kidnap the [petitioner’s
niece] and abscond with her and the petitioner.’’ These
events occurred years before the victim’s murder and
Clein’s arrest. Simply put, the testimony of Donovan
refuted the petitioner’s claim that Clein lied about the
petitioner’s involvement, and the testimony of Jebran
undermined the petitioner’s credibility.
If Novelly’s testimony was admitted into evidence,
the jury still likely would have accepted the state’s
position that Clein acted in accordance with the peti-
tioner’s commands. This is true because the state’s the-
ory was compatible, even if Novelly’s testimony was
introduced, with the testimony of Donovan and Jebran.
On the other hand, the introduction of Novelly’s testi-
mony had no impact on the independent testimony of
Donovan and Jebran. The petitioner’s credibility and
her contention that she was not involved in Clein’s
operation were significantly impacted by their testi-
mony, and it is not reasonably probable that the intro-
duction of codependency syndrome evidence would
have caused a different outcome.
For the foregoing reasons, we agree with the habeas
court that the petitioner did not satisfy her burden that
there exists a reasonable probability that the lack of
Novelly’s testimony regarding codependency syndrome
changed the outcome of her jury trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Keefe was initially retained as counsel, and Knight was appointed as a
special public defender to serve as co-counsel.
2
The petitioner’s signed statement provided: ‘‘That Attorneys [Keefe] and
[Knight] have advised me of the consequences of a conviction of Capital
Felony Murder, i.e., life in prison without the possibility of parole. That we
have also discussed the possibility of my counsel approaching the State’s
Attorney’s Office to discuss a disposition via plea negotiation. That I am
not interested in any plea bargain or plea disposition and I have instructed
Attorneys Keefe and Knight not to engage the prosecution in any such
discussions. In fact, I have told them that even if offered a sentence of five
years in prison, I would not take it.’’
3
The petitioner stated that she ‘‘raises a legal issue of first impression:
to wit, whether counsel for a defendant are required to seek a plea offer
from the state even if the client expresses an intention to enter no plea and
demands a trial.’’
4
Keefe explained that: ‘‘[Novelly] is not being offered as someone who
has examined [the petitioner], he is not being offered as someone who even
knows the evidence in this case. He’s being offered as an expert in this field
as an aid to the jury to explain to them this psychological phenomen[on]
that does exist that people can be dependent so much on another person;
even though that relationship is bad for them, they continue it. It is common,
in fact, in cases in criminal courts of this state to permit that testimony of
battered women syndrome cases and in rape cases and in child sexual
molestation cases where the expert is permitted to testify although it has
nothing to do with the case, has no personal contact with the defendant or
the victim, but is permitted to explain to the jury a psychological phenome-
n[on] in how their action, people in these situations are prone to act.’’
5
‘‘In State v. Porter, [241 Conn. 57, 698 A.2d 739 (1997)], our Supreme
Court adopted the test for determining the admissibility of scientific evidence
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In so doing, our Supreme Court
noted two threshold requirements to the admissibility of scientific evidence.
First, that the subject of the testimony must be scientifically valid, meaning
that it is scientific knowledge rooted in the methods and procedures of
science . . . and is more than subjective belief or unsupported speculation.
. . . This requirement establishes a standard of evidentiary reliability . . .
as, [i]n a case involving scientific evidence, evidentiary reliability will be
based upon scientific validity. . . . Second, the scientific evidence must fit
the case in which it is presented. . . . In other words, proposed scientific
testimony must be demonstrably relevant to the facts of the particular case
in which it is offered, and not simply be valid in the abstract. . . . In Porter
[our Supreme Court] recognized that Daubert’s vagueness as to how and
when to apply the factors of the [Daubert] test was necessary. . . . In order
to maintain flexibility in applying the test, we did not define what constitutes
scientific evidence. . . . Consequently, our initial inquiry is whether the
[evidence] at issue . . . is the type of evidence contemplated by Porter.
. . . The hearing in which this judicial assessment occurs is referred to as
a Porter hearing.’’ (Citations omitted; internal quotation marks omitted.)
Arthur v. Commissioner of Correction, 162 Conn. App. 606, 621–22, 131
A.3d 1267, cert. denied, 323 Conn. 915, 149 A.3d 496 (2016).
6
The Supreme Court provided further guidance on the issue of codepende-
ncy in a footnote and stated: ‘‘Expert testimony that the partners have
personality types conducive to the formation of a codependent relationship
may be based on several sources of information. An expert may have per-
sonal knowledge of the underlying facts or may obtain the requisite informa-
tion by attending the trial and hearing the factual testimony. . . . If an
expert has heard all of the relevant testimony, it is also within the court’s
discretion to permit a question predicated on that testimony. . . . Finally,
an expert may obtain information at trial by having factual testimony summa-
rized in the form of a hypothetical question at trial.’’ (Citations omitted.)
State v. Carpenter, supra, 275 Conn. 812 n.13.