178 Conn. App. 63
Conn. App. Ct.2017Background
- Petitioner Carmine (Carmi) Kellman was convicted after a jury trial of first‑degree murder, carrying a pistol without a permit, and violating a protective order; sentenced to 60 years for murder (concurrent shorter terms on other counts).
- At trial Kellman asserted extreme emotional disturbance and intoxication defenses; the conviction was affirmed on direct appeal.
- Kellman filed a habeas petition alleging ineffective assistance of trial counsel Richard Silverstein based on (1) failure to meaningfully convey/explain a pretrial plea offer (allegedly a 30–40 year offer) and (2) failure to consult or present an expert for the extreme emotional disturbance defense.
- The habeas trial included testimony from Silverstein, the original prosecutor, Kellman, and Kellman’s habeas expert; the habeas court found Kellman not credible on the plea‑offer claim and found Silverstein’s tactical choices regarding expert testimony reasonable.
- The habeas court denied relief on Strickland grounds (failure to show prejudice); granted certification to appeal; this appeal affirms the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel failed to meaningfully present/explain a pretrial plea offer | Silverstein did not inform Kellman of the offer or did not adequately explain it, causing him to reject a favorable plea | Prosecutor and counsel dispute; habeas court found petitioner’s testimony inconsistent and not credible | Court affirmed: petitioner failed to show prejudice (not reasonably probable he would have accepted the plea) |
| Whether counsel was deficient for not consulting or calling an expert on extreme emotional disturbance | An expert would have developed the defense or shown it was unsupportable, changing trial strategy/outcome | Silverstein made a reasonable tactical choice to rely on petitioner/lay testimony, feared paid expert harm, and there was no clinical history suggesting necessity | Court affirmed: tactical decision reasonable and petitioner failed to prove prejudice |
| Whether failure to investigate or call an expert automatically satisfies Strickland | (implicit) Expert consultation was required to avoid ineffective assistance | Defense: no per se requirement; decision must be assessed for reasonableness given facts and strategy | Court held no per se rule; here investigation and strategy were reasonable given circumstances |
| Whether the record shows a reasonable probability of a different outcome absent counsel’s alleged failings | Kellman speculated expert or plea would have produced better result | State points to confession, witness testimony, and strong circumstantial evidence supporting conviction | Court held petitioner’s showing was speculative and insufficient to undermine confidence in verdict |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance: performance and prejudice)
- Missouri v. Frye, 566 U.S. 134 (2012) (prejudice in lapsed plea cases requires reasonable probability defendant would have accepted offer and court/prosecutor would have allowed it)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (effective assistance includes competent counsel before choosing to plead guilty)
- State v. Kellman, 56 Conn. App. 279 (1999) (direct appeal summarizing facts and trial defenses)
- Ham v. Commissioner of Correction, 301 Conn. 697 (2011) (judicial deference to counsel’s strategic choices)
- Ebron v. Commissioner of Correction, 307 Conn. 342 (2012) (requirements for showing prejudice where plea offer lapsed)