author: Borden, J. Berdon, J.,

text:
    Dennis Jackson v. Commissioner of Correction
    (14559)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued May 5—
    decision released August 10, 1993

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, for the appellee (respondent).
   Borden, J.

The petitioner, Dennis Jackson, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The habeas court concluded that the petitioner had failed to demonstrate good cause for his failure to pursue on direct appeal his claim of unconstitutional jury composition that was the basis of his habeas petition. We affirm the judgment of the habeas court.

The record sets forth the facts and lengthy procedural history of this case. At his criminal trial, conducted in May, 1982, the petitioner was represented by Attorney John Buckley. Prior to the trial, Buckley had reached an agreement with assistant state’s attorney Patrick Clifford, who Buckley understood would be prosecuting the petitioner’s case. Buckley had agreed with Clifford that, in challenging the jury array in the petitioner’s case, the petitioner could rely on evidence presented in another case that Buckley and Clifford had tried together and in which a jury array challenge had been brought.

Clifford, however, did not try the petitioner’s case, but instead was replaced by assistant state’s attorney Robert Devlin. Devlin, unlike Clifford, was unwilling to stipulate to the jury array evidence that had been presented in the case that Buckley and Clifford had tried together. Devlin also argued to the trial court that the petitioner’s motion challenging the array was untimely.

In response, the trial court asked Buckley whether he was ready to present evidence necessary to challenge the array. Buckley stated to the court that he would need additional time to subpoena the appropriate witnesses and that he was not prepared to present evidence at that time. Although Buckley informed the trial court that he needed additional time because he had relied on his prior agreement with Clifford, the trial court denied his request for a continuance. The petitioner, therefore, was unable to introduce evidence to support his challenge to the jury array.

The petitioner was subsequently convicted, after a jury trial, of first degree sexual assault, second degree kidnapping and first degree robbery. The petitioner appealed his conviction to this court and we affirmed the judgment of the trial court. State v. Jackson, 198 Conn. 314, 502 A.2d 865 (1986). In his direct appeal, the defendant did not raise a claim that the trial court had abused its discretion by denying his request for a continuance so that he could produce evidence to challenge the jury array.

In 1987, the petitioner filed a petition for a writ of habeas corpus claiming that the jury array from which his petit jury had been selected had been summoned in violation of his federal and state constitutional rights. The habeas court denied the petition for habeas corpus and the petitioner subsequently appealed. His appeal was consolidated with the appeals of thirty-three other habeas petitioners whose similar jury array claims had been rejected by the habeas court. See Johnson v. Commissioner of Correction, 218 Conn. 403, 406, 589 A.2d 1214 (1991).

In those consolidated appeals, the respondent, the commissioner of correction, asserted that, in each case, the habeas court had properly concluded that the composition of the jury array did not violate the petitioner’s constitutional rights. As an alternative ground of affirmance, the respondent asserted that the proper standard by which to analyze the petitioners’ failure to raise their jury array challenges at trial was the cause and prejudice standard as articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), as opposed to the deliberate bypass rule; see Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); upon which the habeas court had relied.

We affirmed the judgment of the habeas court. In so doing, we concluded that the appropriate standard by which to analyze procedural defaults at trial was the Wainwright standard of cause and prejudice, and that the petitioner in each case had not demonstrated legally sufficient cause pursuant to that standard. Johnson v. Commissioner of Correction, supra, 409.

The petitioner in this case then filed a motion for reargument or reconsideration, claiming that sufficient evidence had been presented in the habeas court to meet the cause and prejudice standard. We denied reargument but opened the judgment of affirmance and remanded “the case [to the habeas court] for further proceedings relating to whether there was good cause for [the petitioner’s] failure to raise before trial the claim of unconstitutional jury composition that is the basis for his habeas petition.” Jackson v. Commissioner of Correction, 219 Conn. 215, 217, 592 A.2d 910 (1991).

On the remand, the habeas court concluded that there was not adequate cause to excuse the petitioner’s failure to pursue the jury array challenge on direct appeal. Specifically, the habeas court concluded “that the petitioner has failed to show that there was good cause for his failure to raise before trial the claim of unconstitutional jury composition as a result of having failed to pursue that claim on direct appeal.” This appeal followed.

In his original brief in this appeal, the petitioner contends that the habeas court improperly exceeded the scope of the remand by failing to answer the specific issue set forth in our order, and had instead, outside our mandate, predicated its decision on the petitioner’s failure to pursue the jury array challenge on direct appeal. We agree with the petitioner that the habeas court exceeded the scope of the remand by analyzing the petitioner’s procedural default on appeal, rather than considering whether there was sufficient cause for his failure to challenge properly the composition of the jury array at trial. Because an unexcused procedural default either at trial or on appeal would preclude the habeas court’s consideration of the petitioner’s jury array claim, however, the habeas court’s focus on his procedural default on appeal, rather than his trial default, is not dispositive in these circumstances.

In light of the habeas court’s reliance on a legal ground outside the scope of the remand, and, after reviewing the record, including the history of the briefing in the first appeal from the habeas court’s dismissal of the petition of habeas corpus, we concluded that the petitioner should be granted an opportunity to brief fully the issues relating to procedural default on direct appeal. Nevertheless, because no additional facts beyond those already found by the habeas court are necessary to analyze these legal issues, we concluded that an additional remand to the habeas court was not warranted. Instead, we ordered the parties to file simultaneous supplemental briefs on the following issues: “1. In a habeas corpus proceeding, is the cause and prejudice standard the appropriate standard by which to analyze a petitioner’s failure to pursue a constitutional claim on direct appeal? 2. Did the habeas court properly conclude that there was insufficient cause for [the] petitioner’s failure to pursue on direct appeal his claim that the composition of the jury array violated his constitutional rights?” These issues are dispositive of this appeal.

I

The petitioner first claims that the habeas court improperly adopted the cause and prejudice standard to analyze the petitioner’s failure to pursue the jury array challenge on direct appeal. We disagree.

Prior to 1991, we employed the deliberate bypass rule, as articulated in Fay v. Noia, supra, in order to determine the reviewability of constitutional claims in habeas corpus proceedings that had not been properly raised at trial or pursued on direct appeal. See, e.g., Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966). “In Fay v. Noia, supra, 438-39, the United States Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state court proceedings resulting in his conviction. The court recognized, however, a limited discretion in the federal habeas judge to deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. . . . This deliberate bypass standard for waiver required an intentional relinquishment or abandonment of a known right or privilege by the petitioner personally and depended on his considered choice. . . . A choice made by counsel not participated in by the petitioner does not automatically bar relief.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 411-12.

In Wainwright v. Sykes, supra, however, the United States Supreme Court subsequently “rejected the sweeping language of Fay, which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. The court upheld a state court’s refusal to decide the merits of a claimed Miranda violation first raised in a posttrial motion and in state habeas corpus proceedings, contrary to a state contemporaneous objection rule. The court adopted as a new standard for federal habeas review . . . that [i]n a collateral attack upon a conviction, the petitioner must make not only a showing of cause for the defendant’s failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice. Thus was born the Wainwright cause and prejudice standard for habeas review.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 412-13.

In Johnson, the petitioner’s original appeal from the judgment of the habeas court, we reconsidered, in light of Wainwright, whether the deliberate bypass was the appropriate standard by which to analyze the review-ability of habeas claims that were procedurally defaulted at trial. We decided, after a full review of the relevant considerations, to abandon the deliberate bypass standard of Fay v. Noia, supra, and to adopt the Wainwright cause and prejudice standard as the proper standard to determine the reviewability of such claims. In Johnson, however, we expressly did not reach the related issue of whether the cause and prejudice standard should replace the deliberate bypass rule for claims procedurally defaulted on appeal.

We now conclude that the Wainwright cause and prejudice standard should be employed to determine the reviewability of habeas claims that were not properly pursued on direct appeal. In Johnson v. Commissioner of Correction, supra, we outlined the significant policy reasons for abandoning the deliberate bypass rule and adopting the cause and prejudice standard for claims procedurally defaulted at trial. First, as a general matter, we noted that “special problems . . . are likely to arise relating to the feasibility of a second trial when a conviction is set aside by a habeas court rather than by an appellate court. These problems are related mainly to the more extended delay of the second trial that frequently results from a reversal of a conviction by a habeas court. There is no statute of limitation or other time limit that would bar a habeas petition. United States v. Smith, 331 U.S. 469, 475, 67 S. Ct. 1330, 91 L. Ed. 1610 (1947). Ordinarily the petition may not be filed until appellate remedies have been exhausted . . . . An additional record must be created in the habeas court, which may require extensive testimony. If the petitioner is successful in overturning his conviction, another appeal is almost inevitable.” Id., 415-16.

“A direct appeal following a conviction, on the other hand, is subject to strict time limits at each stage of the proceeding. Except for extraordinary cases, an appeal in this state is ordinarily determined within approximately one year from the date it was filed. The greater time lapse that results when a second trial is ordered by a habeas court has a serious impact on the availability of witnesses and other evidence for the second trial. Memories fade with the passage of time, exhibits are lost, and other evidence is less likely to be available. Appellate counsel would have less incentive to raise on appeal all arguable constitutional claims of the defendant if another opportunity to raise such claims were available in the habeas court. We are convinced that these consequences would be sufficiently harmful to the administration of justice in this state as to require that [we depart from the application of the deliberate bypass rule] ....

“If deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial. It is not common practice and would be unduly cumbersome to establish a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial when such rights are involved. Most of these choices during trial, such as whether to move for suppression of evidence or to cross-examine a particular witness, must necessarily be left to counsel, subject to the requirement that his performance satisfy reasonable standards of competency. In those rare instances in which a deliberate bypass is found, of course, habeas review would be barred for that reason alone, apart from the cause and prejudice standard.” Id., 416-17.

The “special problems” regarding procedural defaults at trial that we noted in Johnson apply equally to procedural defaults on direct appeal, and militate in favor of our adoption of one standard by which to measure procedural defaults occurring at trial or on direct appeal. As the United States Supreme Court has noted in specifically adopting the cause and prejudice standard to analyze procedural defaults on direct appeal: “A State’s procedural rules serve vital purposes at trial, on appeal, and on state collateral attack. . . . [Such rules] ‘[afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant’s claim and to retry the defendant effectively if he prevails in his appeal. . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.’ ” Murray v. Carrier, 477 U.S. 478, 490-91, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); see also Roman v. Abrams, 822 F.2d 214, 222-23 (2d Cir. 1987) (habeas review of jury selection challenge unavailable absent showing of cause and prejudice for petitioner’s failure to raise claim on direct appeal), cert. denied, 489 U.S. 1052, 109 S. Ct. 1311, 103 L. Ed. 2d 580 (1989).

We also recognize that the judicial system’s legitimate interest in procedural rules is undermined regardless of whether the breach results from counsel’s “ignorance or inadvertence rather than a deliberate decision, tactical or not, to abstain from raising the claim.” Murray v. Carrier, supra, 491. Just as with procedural defaults occurring at trial, the costs of violation of our procedural rules are incurred regardless of the kind of attorney error that led to the failure of counsel to pursue a claim on appeal.

Furthermore, in a practical sense, the cause and prejudice standard is at least equally appropriate to the failure to raise a claim on appeal as it is to the failure to raise a claim in the trial court. One of the underlying rationales for preferring the cause and prejudice standard to the deliberate bypass rule, regarding trial court defaults, is that it is unrealistic and inconsistent with the proper role of trial counsel to require consultation with the client regarding every legal or tactical consideration.

The same is true of appellate counsel. It is unrealistic and inconsistent with the proper role of appellate counsel to require consultation with the client, and presumably to secure the client’s consent, with respect to the decision of whether to raise or forego particular legal claims on appeal. Indeed, applying the deliberate bypass rule to such decisions of appellate advocacy would create the incentive for counsel to remain silent, rather than to confer with the client because ultimately the client would be better served in a habeas action by remaining ignorant of potential claims on direct appeal.

Consequently, contrary to the petitioner’s claim, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of appellate procedure. Cf. Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988) (ineffective assistance of counsel claim for failing to raise claim on direct appeal automatically satisfies the deliberate bypass requirement). In light of these considerations, therefore, we conclude that the cause and prejudice standard should be employed to determine the review-ability of a habeas claim that was not properly pursued on direct appeal.

II

The petitioner next claims that, even if the cause and prejudice standard is the appropriate standard by which to analyze his failure to pursue his claim on direct appeal, the habeas court improperly concluded that there was insufficient cause for the petitioner’s failure to pursue on direct appeal his claim that the composition of the jury array violated his constitutional rights. We are unpersuaded.

As noted above, the trial court denied Buckley’s request for a continuance for additional time to subpoena witnesses whose testimony was necessary for his jury array challenge. It was this denial that prevented the petitioner from asserting his jury array challenge at trial. The petitioner, however, did not challenge this denial on appeal.

We have repeatedly recognized, however, that the denial of a request for a continuance is appealable. See, e.g., State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990). Consequently, the petitioner was free to challenge the denial of the continuance on direct appeal if he believed that the denial had been improper under the circumstances of the case. If he then convinced the reviewing court that the denial was reversible error, he would have been entitled, on remand to the trial court, to present the evidence regarding the jury array that he had originally intended to present. Under that scenario, however, if his jury array challenge were successful, a new trial would have ensued shortly after the direct appeal, rather than now, eleven years later.

Despite the opportunity to challenge the denial of the continuance on direct appeal, the petitioner claims that adequate cause existed for this failure because a factor external to the defense prohibited him from challenging the array at trial. This claim is predicated on prior decisions that have found adequate cause for a petitioner’s procedural default in circumstances in which the default is not attributable to attorney error. See, e.g., Murray v. Carrier, supra, 488; Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984); Brown v. Allen, 344 U.S. 443, 486, 73 S. Ct. 397, 97 L. Ed. 469 (1953). The United States Supreme Court has summarized the rule as follows: “So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or that ‘some interference by officials’ . . . made compliance impracticable, would constitute cause under this standard.” Murray v. Carrier, supra.

In the present case, the petitioner argues that the trial court’s refusal to allow him additional time to subpoena the witnesses necessary to present his jury array challenge constituted “some interference by officials” thereby creating adequate cause for his failure to challenge the array at trial. Without expressing any opinion as to the legal accuracy of this claim, we simply note that the petitioner’s argument misses the point. Even if the denial of the continuance constituted cause for the petitioner’s failure to challenge the jury array at trial, the trial court's action did not prohibit the petitioner from raising the claim on direct appeal that the trial court had abused its discretion by failing to grant the continuance. To hold otherwise would be to undermine the important policies underlying our appellate procedural rules and our interest in the timely and efficient resolution of claims at trial and on appeal. Consequently, the petitioner’s claim of cause based on the “interference by officials,” even if adequate to excuse his procedural default at trial, is not sufficient cause for his procedural default on direct appeal.

The judgment is affirmed.

In this opinion Peters, C. J., Callahan and NorCOTT, Js., concurred.

Berdon, J.,

dissenting. At the very least, we should continue to employ the deliberate bypass standard to determine the reviewability of habeas claims that were not properly pursued on direct appeal. The majority’s decision closes the door to petitioners who may have meritorious claims to challenge their confinement and who may, in fact, be innocent, but who, through no fault of their own, are precluded from pursuing their claims.

I must confess that the scales weigh heavily, at least for me, in favor of granting a new trial to persons whose claims cast a substantial cloud on the validity of their convictions. The rules established today have equal application for those who are incarcerated for life as well as those who are awaiting the death penalty. The majority, emulating the United States Supreme Court, restricts habeas corpus in the name of finality of decisions. Lest we forget, there is nothing more final than the imposition of the death penalty.

Furthermore, as in the present case, the vast majority of criminal defendants are represented either by public defenders or by special public defenders assigned by the state. These competent and dedicated attorneys carry heavy caseloads, which often play a role in procedural defaults. In State v. Weber, 221 Conn. 84, 89, 602 A.2d 973 (1992) (Berdon, J., dissenting), for example, this court denied the defendant’s petition for certification for review of the Appellate Court’s dismissal of his appeal because the public defender had failed to file a timely brief. The public defender was unable to meet the filing deadline because of his caseload and because he was defending another person who was on trial for felony murder. The state, therefore, must take its share of the blame for the procedural defaults.

Finally, in most cases, procedural defaults do not result from the defendant’s failure to abide by the rules, but from defense counsel’s actions. I could accept the new standard advanced by the majority today if each defendant could be assigned a perfect appellate attorney. That is not possible given human fallibility; even great trial advocates make mistakes. In many cases, these mistakes may not reach the level of ineffective assistance of counsel and therefore leave the defendant without a remedy to correct any injustice.

The majority rejects the deliberate bypass standard for essentially two reasons. First, the majority notes the problems associated with granting a new trial years after the alleged crime. I too recognize the difficulty of conducting a second trial when memories have faded and evidence is not easily available. In many cases, however, these problems are ameliorated by the rules of evidence permitting admission of a witness’ testimony at a prior proceeding under certain circumstances. See, e.g., State v. Outlaw, 216 Conn. 492, 504-506, 582 A.2d 751 (1990) (trial court properly admitted transcribed testimony of witness who had testified at the probable cause hearing but was unavailable at trial); see also In re Durant, 80 Conn. 140, 151-52, 67 A. 497 (1907); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. Sup. 1992) § 11.4.1. In addition, a witness’ prior inconsistent statement could be introduced into evidence for substantive purposes under certain circumstances. State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

Relying on Johnson v. Commissioner of Correction, 218 Conn. 403, 416-17, 589 A.2d 1214 (1991), the majority claims that under the deliberate bypass standard there must be a showing that “the defendant had personally made a knowledgeable waiver of his constitutional procedural rights” and uses this extreme interpretation to reject the deliberate bypass rule. Whether there has been a “deliberate bypass” on appeal should not depend on whether the defendant made a personal, deliberate choice not to pursue a certain claim, but rather, on whether the choice was made by appellate counsel. This distinction is reasonably based upon the role of appellate counsel in relation to the decision of what issues should be pursued on appeal. In Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983), the United States Supreme Court held that appellate defense counsel does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant. As a result, defendants should not be precluded from pursuing habeas claims that their attorneys chose not to pursue. In addition, the difficulties of establishing “a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial”; Johnson v. Commissioner of Correction, supra, 417; are not involved on appeal.

In regard to the defendant’s personal waiver of claims, the majority suggests that the deliberate bypass rule would encourage defense attorneys to “remain silent, rather than to confer with the client because ultimately the client would be better served in a habeas action by remaining ignorant of potential claims on direct appeal.” Tailoring the deliberate bypass rule as indicated above would put this claim to rest. Furthermore, here, as in Wainwright v. Sykes, 433 U.S. 72, 102, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), “the [United States Supreme] Court points to no cases or commentary arising during the past 15 years of actual use of the [Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) deliberate bypass] test to support this criticism.”

Even if the “cause and prejudice” standard is applied, I would get to the merits of the petition in this case. The defendant is an African-American who sought to challenge the pool of jurors available for jury selection at trial, claiming that African-Americans were underrepresented as a result of the town quota system. Indeed, the United States Court of Appeals for the Second Circuit in Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), held “that the town quota system for selecting veniremen established by General Statutes (Rev. to 1975) § 51-220 had resulted in underrepresentation of black people in the pool of prospective jurors and grand jurors serving New Haven County in 1975, when the trial of the petitioners in that case took place, and that this disparity violated the principle of equal protection.” Johnson v. Commissioner of Correction, supra, 406-407.

The habeas court found on remand the following relevant facts: “The petitioner was represented at his criminal trial by Attorney John Buckley, who testified at the habeas hearing. Sometime prior to the petitioner’s trial, Attorney Buckley reached an agreement with then Assistant State’s Attorney Patrick Clifford, who was then the prosecutor regarding petitioner’s case. The agreement reached was that at the petitioner’s trial, Attorney Buckley could rely on evidence presented in another case that he and Attorney Clifford had tried together wherein a jury array challenge was presented. Attorney Buckley filed a motion challenging the array of the selection or the method of selecting jurors in the State of Connecticut on behalf of the petitionfer] in his underlying criminal trial. The challenge to the array was filed within several days prior to the date of trial. The evidence that Attorney Buckley had presented in a different criminal case challenging the method of selecting jurors would be the same evidence that would have been presented in the petitioner’s case. Rather than Assistant State’s Attorney Patrick Clifford prosecuting the petitioner’s case, it was prosecuted by Assistant State’s Attorney Robert Devlin. Attorney Devlin was unwilling to stipulate to the use of the evidence used in the prior challenge to be used in the petitioner’s challenge. When informed by Attorney Devlin that the evidence used in the prior case would not be stipulated to in the petitioner’s case, Attorney Buckley informed the trial court that he wished to proceed with the jury challenge and would need time to subpoena the appropriate witnesses. The request of Attorney Buckley to have until the following day to subpoena witnesses was denied by the trial court. An exception was taken to this ruling and the challenge to the array was never withdrawn by Attorney Buckley.”

In denying the defendant’s request for a continuance in order to enable him to summon witnesses to challenge the array, the following colloquy occurred between the trial judge and defense counsel:

“The Court: Are you ready to produce these people?
“Mr. Buckley: I will need time to subpoena them, Your Honor. What can I say to you?
“The Court: So you are not ready to go forward now with this motion?
“Mr. Buckley: I think, Your Honor, that is not quite proper.
“The Court: Well, with any evidence.
“Mr. Buckley: You mean right at this minute?
“The Court: Yes.
“Mr. Buckley: No, but I think I should deserve the consideration to be able to at least subpoena the people or get them here within the next day.
“The Court: Are your finished?
“Mr. Buckley: Yes, Your Honor.
“The Court: In spite of your brilliant and impassioned presentation, Mr. Buckley, the motion is denied.
“Mr. Buckley: Exception.
“The Court: Exception is noted.”

The majority asserts that “[e]ven if the denial of the continuance constituted cause for the petitioner’s failure to challenge the jury array at trial, the trial court’s action did not prohibit the petitioner from raising the claim on direct appeal that the trial court had abused its discretion by failing to grant the continuance.” (Emphasis in original.) I can only find one criminal case in which this court has held that the trial court’s denial of a motion for continuance constituted an abuse of discretion. State v. Williams, 200 Conn. 310, 321, 511 A.2d 1000 (1986). In State v. Beckenbach, 1 Conn. App. 669, 476 A.2d 591 (1984), the Appellate Court held that the trial court had abused its discretion in denying the defendant’s motions for continuance, but this court reversed that ruling. State v. Beckenbach, 198 Conn. 43, 501 A.2d 752 (1985). This court has granted the trial court such broad discretion in determining whether to grant or deny a continuance that an appeal on that issue is for all practical purposes frivolous. Even in State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990), on which the majority relies, the defendant’s claim was dismissed. When the trial court’s discretion is so great that it is virtually impossible to obtain reasonable review, the omission of that claim, especially when there is no proof that it was a deliberate omission, should satisfy the “cause” standard.

In addition, the defendant’s substantive claim goes to the core of our judicial process. “In our system of justice, not only must the accused be afforded a fair trial, but equally important there must be a perception of fairness by the community and the accused. Anything less not only undermines the credibility of this branch of government but also threatens the very fabric of our democracy. And, of course, the perception that the person is being tried before a fair jury drawn from a cross-section of the community is high on the agenda in achieving that goal.” State v. Tillman, 220 Conn. 487, 514-15, 600 A.2d 738 (1991) (Berdon, J., dissenting), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Neither the accused in this case nor the African-American community can possibly believe that the defendant was justly convicted when his jury was not selected from a pool of persons representing a fair cross section of the population. Accordingly, I would find that the “prejudice” has been established. See State v. Nims, 180 Conn. 589, 595-96, 430 A.2d 1306 (1980) (attempt to stack a jury panel by intentionally including members of a discernable class runs afoul of both due process and the right to jury trial).

Finally, the majority continues its assault on the writ of habeas corpus. Last year, I cautioned that there was a discernible trend to undermine this “ ‘ “bulwark against convictions that violate ‘fundamental fairness.’ ” ’ Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984). . . Safford v. Warden, 223 Conn. 180, 206, 612 A.2d 1161 (1992) (Berdon, J., dissenting); see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 467 n.1, 610 A.2d 598 (1992) (Berdon, J., dissenting). My fears, unfortunately, were not exaggerated.

Accordingly, I respectfully dissent.

       The petitioner appealed to the Appellate Court, upon the trial court’s grant of certification pursuant to General Statutes § 52-470 (b), and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The petitioner had previously been granted a two week continuance that began after the jury had been selected but prior to trial.

       The petitioner, a black male, claimed that members of his race were underrepresented on his jury array in violation of his equal protection rights guaranteed by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution.

       The habeas court issued a lengthy memorandum of decision setting forth its reasons for denying the petition. The habeas court first analyzed whether the “cause and prejudice” standard or the “deliberate bypass” rule was the appropriate standard by which to decide whether relief was precluded by the petitioner’s failure to challenge the jury array on direct appeal. Although the habeas court concluded that, at the time of his decision, the deliberate bypass rule was still the law of Connecticut, it noted that a pending appeal in this court raised this precise issue. The court therefore analyzed the claim under both rules and concluded that: (1) there was sufficient cause to excuse his failure to challenge the array on direct appeal but that the petitioner had not made the requisite showing of prejudice; and (2) the habeas claim was not barred under the deliberate bypass rule.
      In light of its conclusion that the petitioner had not deliberately bypassed appellate review of his jury array challenge, the habeas court then analyzed the merits of the petitioner’s habeas claim. After analyzing the relevant evidence and law, the habeas court concluded that the petitioner had failed to demonstrate that the composition of his jury array violated his constitutional rights.

       We recognize that this statement is somewhat ambiguous as to whether the habeas court predicated its decision on a procedural default at trial or on a procedural default on direct appeal. Both parties agree, however, and the entire memorandum of decision plainly demonstrates, that the habeas court’s analysis focused on the petitioner’s failure to pursue the jury array challenge on direct appeal.

       We have previously recognized that, “ ‘[i]n carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.’ ” State v. Lafferty, 191 Conn. 73, 76, 463 A.2d 238 (1983).

       We are puzzled, to say the least, by the dissent’s truculent: (1) fear that we have closed the door to a substantial claim of innocence in fact by a habeas corpus petitioner; and (2) need to remind us of the finality of death. Neither of these issues is before us in this appeal. This record is bereft of any claim of actual innocence by the petitioner, and this court has not yet even considered a death penalty case on direct appeal, let alone on habeas corpus review.

       In adopting the cause and prejudice standard for procedural defaults occurring at trial, we recognized that, particularly in jury array challenges, the deliberate bypass rule would encourage astute counsel to “sandbag” the court by saving their claims until habeas review. Johnson v. Commissioner of Correction, 218 Conn. 403, 418, 589 A.2d 1214 (1991). This possibility exists because if the time limitations for bringing a challenge at trial were followed, any constitutional defect in the array could be cured, and the trial could be continued. Consequently, “[sjtrong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.” (Internal quotation marks omitted.) Id.
      The same danger of “sandbagging” would exist, albeit to a lesser extent, if we were to continue to apply the deliberate bypass rule to procedural defaults on appeal. The defendant’s counsel on appeal might well conclude that the best strategy is to raise a few promising claims on appeal, while reserving others for later habeas review should the direct appeal be unsuccessful. See Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).

       The petitioner has not cited a single case in which a court considered the question of whether the trial court’s decision on a motion could itself be “interference by officials” under the cause and prejudice standard. The cases cited by the petitioner for this proposition either concluded that the petitioner had, in fact, satisfied the state’s procedural rules; see, e.g., James v. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984); Carbajol v. Fairman, 700 F.2d 397, 399 (7th Cir. 1983); Huffman v. Wainwright, 651 F.2d 347, 352 (5th Cir. 1981); Pedrero v. Wainwright, 590 F.2d 1383, 1390 (5th Cir.), cert. denied, 444 U.S. 943, 100 S. Ct. 299, 62 L. Ed. 2d 310 (1979); White v. Estelle, 566 F.2d 500, 501 n.1 (5th Cir. 1978); or focused on the action of government officials other than the trial court itself. See, e.g., Julius v. Jones, 875 F.2d 1520, 1525 (11th Cir.) (prosecutor’s failure to produce Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963] material), cert. denied, 493 U.S. 900, 110 S. Ct. 258, 107 L. Ed. 2d 207 (1989); Buffalo v. Sunn, 854 F.2d 1158, 1165-66 (9th Cir. 1988) (pro se petitioner unable to file state petition for certification because he had been held in “lock down” by prison officials). Presumably, therefore, the petitioner’s argument in the present case may devolve into the contention that there in fact was no procedural fault at trial because the petitioner had adequately attempted to bring a challenge to the jury array. Again, because we predicate our decision on the petitioner’s procedural default on appeal, we need not address this argument.

       In a claim for ineffective assistance of counsel the “petitioner must make a two-fold showing: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.” Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986).

       In Watley v. Commissioner of Correction, 227 Conn. 147, 628 A.2d 1314 (1993), I joined the majority in remanding the case to the habeas court to be reviewed under the “cause and prejudice” standard because of this court’s decision in Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991), and the probability that the standard could be met. In Watley, the habeas court denied the petitioner’s claim on the assumption that it was not to take additional evidence as a result of a prior remand. Nevertheless, I am not prepared to endorse Johnson for trial defects, and leave the issue for another day.

       In Johnson v. Commissioner of Correction, 218 Conn. 403, 417, 589 A.2d 1214 (1991), Justice Shea pointed out the following: “If deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial. It is not common practice and would be unduly cumbersome to establish a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial when such rights are involved. Most of these choices during trial, such as whether to move for suppression of evidence or to cross-examine a particular witness, must necessarily be left to counsel, subject to the requirement that his performance satisfy reasonable standards of competency.”

       In State v. Beckenbach, 198 Conn. 43, 501 A.2d 752 (1985), this court upheld the trial court’s refusal to grant a continuance because defense counsel was on trial in another case. This court held that “the matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse. ... It must be shown that the trial judge acted arbitrarily and substantially impaired [the] defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one.” (Citations omitted; internal quotation marks omitted.) Id., 47.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Jonathan Watley v. Commissioner of Correction
    (14549)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued May 5—
    decision released August 10, 1993

      Pamela A. Mitchell, for the appellant (petitioner).

      James A. Killen, assistant state’s attorney, for the appellee (respondent).
   Borden, J.

The petitioner, Jonathan Watley, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The habeas court concluded that the petitioner did not demonstrate good cause for his failure to pursue at trial his claim of unconstitutional jury composition that was the basis of his habeas petition. We reverse the judgment of the habeas court and remand the case for further proceedings.

The record sets forth the facts and lengthy procedural history of this case. In March, 1982, after a jury trial, the petitioner was convicted of first degree sexual assault, second degree burglary and first degree larceny. The petitioner appealed from the judgment of conviction to this court and we affirmed the conviction. State v. Watley, 195 Conn. 485, 488 A.2d 1245 (1985).

In 1986, the petitioner filed this petition for a writ of habeas corpus. The petitioner claimed that his conviction was improper because: (1) the jury array from which his petit jury had been selected had been summoned in violation of his federal and state constitutional rights; and (2) he had been denied his constitutional right to effective assistance of counsel because of the failure of his counsel to challenge the jury array at trial. The habeas court denied the petition for habeas corpus and the petitioner subsequently appealed. His appeal was consolidated with the appeals of thirty-three other habeas petitioners whose similar jury array claims had been rejected by the habeas court. See Johnson v. Commissioner, 218 Conn. 403, 406, 589 A.2d 1214 (1991).

On that previous appeal, the respondent, the commissioner of correction, asserted that, in each case, the trial court had properly concluded that the composition of the jury array did not violate the petitioner’s constitutional rights. As an alternative ground of affirmance, the respondent asserted that the proper standard by which to analyze the petitioners’ failure to raise their jury array challenges at trial was the cause and prejudice standard as articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), as opposed to the deliberate bypass rule; see Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); upon which the habeas court had relied.

We affirmed the judgment of the habeas court. In so doing, we concluded that the appropriate standard by which to analyze procedural defaults at trial was the Wainwright standard of cause and prejudice, and that the petitioner in each case had not demonstrated legally sufficient cause pursuant to that standard. Johnson v. Commissioner of Correction, supra, 409. We also rejected the claim that the failure of the petitioners’ counsel to raise the challenge at their trials deprived them of their constitutional right to effective assistance of counsel because of the tenuousness of their jury array challenges. Id., 427.

This petitioner then filed a motion for reargument or reconsideration claiming that sufficient evidence had been presented in his individual habeas case to meet the cause and prejudice standard. Specifically, the petitioner called our attention to testimony presented in the habeas court suggesting that the public defender’s office had refused to authorize the petitioner’s special public defender at trial, Max Brunswick, to expend funds necessary to present expert witness testimony regarding the allegedly defective jury array.

We denied reargument but opened the judgment of affirmance. Watley v. Commissioner of Correction, 219 Conn. 231, 592 A.2d 911 (1991). We recognized that, pursuant to the cause and prejudice standard adopted in Johnson, “a showing . . . that some interference by officials, Brown v. Allen, 344 U.S. 443, 486, 73 S. Ct. 397, 97 L. Ed. 2d 469 [reh. denied, 345 U.S. 946, 73 S. Ct. 437, 97 L. Ed. 1370] (1953), made compliance [with a procedural rule] impracticable would constitute cause under this standard. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).” (Internal quotation marks omitted.) Watley v. Commissioner of Correction, supra, 232-33. In light of the habeas court’s lack of a finding on whether such interference in fact had occurred, we were unable to resolve the issue of whether there was good cause for the procedural default of the petitioner at trial in failing to raise a challenge to the jury array. Id., 233. “Accordingly, we open[ed] the judgment affirming the dismissal of the petition ... and remand[ed] the case for further proceedings relating to whether there was good cause for his failure to raise before trial the claim of unconstitutional jury composition that is the basis for the habeas petition.” Id.

On remand, both parties requested an evidentiary hearing to address the issue of whether the public defender’s office had, in fact, denied Brunswick funding to bring the jury array challenge. The habeas court, however, denied the request for an evidentiary hearing, concluding that an evidentiary hearing was not authorized by our remand order; cf. Jackson v. Commissioner of Correction, 227 Conn. 124, 129, 629 A.2d 413 (1993); and that the finding requested in the remand order should be made solely from the testimony presented at the original hearing on the petition.

The habeas court, relying on the transcripts from the original hearing on the habeas petition, issued a written memorandum containing the following findings: “The petitioner was represented at his criminal trial by Attorney Max F. Brunswick, who had been appointed to represent the petitioner as a special public defender. At the time of the petitioner’s trial, it was Attorney Brunswick’s practice to raise challenges to the jury array during the course of the representation of his clients. He did not raise a jury array challenge on behalf of the petitioner. The reason he did not file such a challenge on behalf of the petitioner was because he had been told by someone from the public defender’s office that the public defender’s office did not have the money to subpoena the jury commissioners in New Haven County, and without funds to issue the subpoenas, it would have been impossible to go forward on the evidentiary portion of a challenge to the array. . . . Having been denied funding necessary to present a challenge to the jury array, Attorney Brunswick therefore did not file any challenge to the jury array in the petitioner’s criminal trial.”

Despite these findings, the habeas court concluded that the petitioner had failed to demonstrate cause for the failure to raise the jury array challenge at trial. The habeas court reasoned that the denial of funding was not an “interference by officials external to the defense,” and therefore could not constitute cause because the office of the public defender “is not ‘external to the defense’ but rather is a part of the defense.” This appeal followed.

The petitioner claims that the habeas court improperly concluded that the petitioner had not demonstrated cause for his procedural default at trial. Because we agree with both parties that the habeas court should have held an evidentiary hearing on Brunswick’s claim that he had been denied funding to bring the jury array challenge, we reverse the judgment of the habeas court and remand the case for such a hearing.

The habeas court’s reliance on nothing other than the transcripts of the original habeas petition hearing was not justified in the circumstances of this case. When the original hearing was conducted, Connecticut utilized the deliberate bypass rule to determine the review-ability of habeas claims that had been procedurally defaidted at trial. Consequently, the evidence presented in that hearing was not designed to address the issue of whether there was cause for the petitioner’s default under Wainwright v. Sykes, supra. Given the change in adjudicatory standards between the first habeas hearing and the hearing held on remand, we conclude that the habeas court’s reliance on the testimony presented at the first hearing was improper.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       The petitioner appealed to the Appellate Court upon the habeas court’s grant of certification pursuant to General Statutes § 52-470 (b), and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The petitioner, a black male, claimed that members of his race were underrepresented on his jury array in violation of his equal protection rights guaranteed by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution.

       The habeas court issued a lengthy memorandum of decision setting forth its reasons for denying the petition. We first note that this memorandum of decision makes some references to procedural default on appeal. In light of the fact that the petitioner failed to make any mention of a possible jury array challenge at trial, however, we read the analysis in the habeas court’s decision, consistently with our decision in Johnson v. Commissioner of Correction, 218 Conn. 403, 406, 589 A.2d 1214 (1991), to rest upon consideration of the petitioner’s procedural default at trial. Cf. Jackson v. Commissioner of Correction, 227 Conn. 124, 629 A.2d 413 (1993).
      The habeas court first analyzed whether the “cause and prejudice” standard or the “deliberate bypass” rule was the appropriate standard by which to decide whether habeas relief was precluded by the petitioner’s failure to challenge the array. Although the habeas court concluded that, at the time of its decision, the deliberate bypass rule was still the law of Connecticut, the court noted that a pending appeal in this court raised this precise issue. The court therefore analyzed the claim under both rules and concluded that: (1) there was sufficient cause to excuse the petitioner’s failure to challenge the array but that he had not made the requisite showing of prejudice; and (2) the habeas claim was not barred under the deliberate bypass rule.
      In light of its conclusion that the petitioner had not deliberately bypassed the challenge to the jury array, the habeas court then reviewed the merits of the petitioner’s habeas claim. After analyzing the relevant evidence and law, the habeas court concluded that the petitioner had failed to demonstrate that the composition of his jury array violated his constitutional rights. The court also concluded that the petitioner had not been denied his constitutional right to the effective assistance of counsel because: (1) his counsel’s failure to pursue a claim for which there was no reasonable basis in existing law constituted reasonable conduct under prevailing professional norms; and (2) there was no evidence that, if the challenge had been brought, the verdict would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       Because we conclude that an inadequate factual record exists to adjudicate the issue of cause, we do not reach the issue of whether the habeas court properly concluded that the denial of funding of the petitioner’s special public defender’s jury array challenge by the public defender’s office was a factor external to the defense.


author: Berdon, J.

text:
    State of Connecticut v. Anthony J. Borrelli
    (14571)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.

      Argued June 4—
    decision released August 10, 1993

      Carl D. Eisenman, public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom were Frank S. Maco, state’s attorney, and, on the brief, Michael Brandt, legal intern, for the appellee (state).
   Berdon, J.

The defendant, Anthony J. Borrelli, raises two issues on appeal: (1) whether the trial court improperly admitted a prior inconsistent statement of the victim for substantive purposes; and (2) whether the trial court improperly allowed expert testimony on battered woman’s syndrome for the purposes of impeaching the victim’s trial testimony and providing a possible explanation for her recantation.

The defendant was charged in an information with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and threatening in violation of General Statutes § 53a-62 (a) (1). He was also charged with breach of the peace in violation of General Statutes § 53a-181 (a) (1). The defendant pleaded not guilty to all charges and elected a jury trial. Prior to trial, the defendant filed a motion to dismiss all charges, except for the breach of the peace charge, on the ground that there was insufficient evidence. The trial court denied the motion after a full evidentiary hearing and consolidated all charges for trial. After a jury verdict of guilty on all charges, the defendant was sentenced to an effective term of imprisonment of twenty years, suspended after ten years, with five years probation. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3). We affirm the judgment of the trial court.

The following evidence was presented at trial. On December 30,1990, the victim, the wife of the defendant, accompanied by three of her children, went to the Torrington police department in the evening hours and spoke to police officer Dale Olofson. She gave Olofson a written statement alleging that the defendant had physically abused and detained her the previous evening. She read and signed the statement. Her statement reveals the following: The defendant smoked some cocaine in the late evening hours of December 29, 1990, and then began accusing her of cheating on him. He cut up her clothing, underwear, driver’s license and social security card with a knife. He held a pillow over her face so she could not breathe, and then tied her hands and feet together with rope behind her back. While she was bound, he threw a knife into the bedroom walls a number of times. He repeatedly threatened to kill her and members of her family, cut her lips with a knife, and held a cigarette lighter near her genital area. At approximately 6 a.m., he released her by cutting the ropes with a knife, and ordered her to give him a ride to Waterbury to buy drugs. They returned at 9 or 9:30 in the morning. She was tired but he would not let her sleep. He also would not let her cancel dinner plans they had made, so she began cooking.

At the hearing on the motion to dismiss, the victim testified that the events alleged in her statement had not happened. At trial, she again recanted. During cross-examination by the defendant at trial, she testified for the first time that it was actually she who had tied up and physically abused the defendant. She also testified that she had made up her initial story in the hopes that the defendant would be arrested and given drug treatment.

I

The defendant’s first claim is that the trial court improperly admitted into evidence for substantive purposes the victim’s written, sworn statement to the police, in which she had described in detail the physical abuse that the defendant had inflicted upon her that morning. At trial, the victim was called as the state’s first witness. She testified that on December 30,1990, she had gone to the Torrington police department and had met with Olofson. She gave a statement to Olofson, which she signed after it was reduced to writing. She testified that the words in the statement were the words that she had spoken to Olofson.

Next, the victim was asked by the state’s attorney if the words in her statement were “the truth as to what took place between you and your husband on December 30, 1990.” She responded that the statement was not accurate. After questioning the victim as to some of the specific facts contained in her statement, the state offered the statement into evidence. The trial court admitted the statement for both impeachment and substantive purposes pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

In Whelan, we adopted an exception to the hearsay rule allowing the substantive use of a prior inconsistent written statement of a nonparty witness if the declarant: (1) signed the statement; (2) had personal knowledge of the facts set forth in her statement; and (3) testifies at trial and is subject to cross-examination. Id., 749; see State v. Buster, 224 Conn. 546, 556, 620 A.2d 110 (1993). We reasoned that prior inconsistent statements made under circumstances providing a reasonable assurance of reliability should be admitted to advance the truth finding function of the jury. State v. Whelan, supra, 748-53.

The defendant argues, however, that the statement should have been excluded because the particular circumstances of this case undermine the reliability of the victim’s prior inconsistent statement. Specifically, the defendant argues that in Whelan, the homicide eyewitness’ claimed inability to remember the incident in question established the foundation for the admission of his prior statement. The defendant argues that Whelan is limited to this context, and does not stand for the proposition that the written statement of a victim who later asserts that the statement is not true is admissible for substantive purposes. We disagree.

It is true that the witness in Whelan testified in court that he was unable to remember the event because he had been intoxicated at the time and because he had been in an automobile accident that had left him in a coma. Id., 746. Our analysis in Whelan, however, did not focus on the circumstances surrounding the witness’ statements in the courtroom. Rather, we carefully examined the circumstances surrounding the out-of-court statement, in order to determine if the statement was made under conditions providing a reasonable assurance of reliability. Id., 754; accord State v. Alvarez, 216 Conn. 301, 314, 579 A.2d 515 (1990); State v. Hopkins, 222 Conn. 117, 124-26, 609 A.2d 236 (1992). Thus, in State v. Alvarez, supra, 312-13, we upheld the admission of a prior inconsistent statement for substantive purposes despite the fact that the witness claimed no memory loss, but instead testified, contrary to her previous written statement, that she had neither seen who had shot the victim, nor had she seen the defendant with a gun. Similarly, in State v. Hopkins, supra, 126, we upheld the admission of a statement identifying the defendant where, at trial, the witness claimed that she had seen two men whom she could not identify.

In the present case, the trial court reasonably found sufficient indicia of reliability in the circumstances surrounding the victim’s statement to uphold its admission for substantive purposes. First, the victim gave her statement to a police officer on the day of the incident described in the statement. The statement was made “long before the witness’ memory [of such an event] might have faded.” (Internal quotation marks omitted.) State v. Alvarez, supra, 314. She also signed the statement after reading it, and swore to its accuracy under oath. She confirmed at trial that the words in the statement were the words that she had spoken to Olofson. Most importantly, the victim’s statement was not “given in response to leading questions, which are laden with facts to which the witness has merely answered with a yes or no.” (Internal quotation marks omitted.) State v. Hopkins, supra, 125.

Furthermore, there was ample corroborative evidence in the present case. Id., 123. Olofson testified that after she had taken the statement from the victim, she asked to see the marks that the victim had claimed were on her body. Olofson testified that the victim had had visible marks on her ankles, and had also showed Olofson marks on her wrists and cuts on her top and bottom lips. Olofson accompanied the victim to her house where she viewed pieces of cut up lingerie, a rope, and two knives. Finally, Olofson testified that there were “narrow vertical marks” in the walls of the bedroom. Olofson’s observations corroborated the victim’s statement, and thereby enhanced its reliability, preventing the specter of a prosecution based solely on an out-of-court inconsistent statement. “It is the trial court’s responsibility to weigh the reliability of each statement on a case-by-case basis.” Id., 126. In the present case, the trial court properly found that the out-of-court statement given by the victim had sufficient indicia of reliability to be admitted for both impeachment and substantive purposes.

The defendant also argues that the state did not establish a sufficient foundation to admit the prior inconsistent statement. Specifically, the defendant argues that the victim’s recantation alone was insufficient, and that the state should have been required to elicit through direct examination her specific version of the events. We disagree. Once the victim denied categorically that abuse had taken place, her prior statement detailing egregious abuse was sufficiently inconsistent to establish a foundation for the Whelan hearsay exception.

II

The defendant next claims that the trial court improperly admitted the testimony of an expert witness concerning battered woman’s syndrome. The state in its case-in-chief offered into evidence the expert testimony of Evan Stark, a sociologist, on the subject of that syndrome. The evidence was offered for the purpose of providing a possible explanation for the victim’s recantation and to impeach her subsequent testimony that she had lied in the statement to get the defendant drug counseling. After a preliminary examination of Stark outside of the presence of the jury and briefing and argument by counsel, the trial court allowed the testimony over the defendant’s objection.

The defendant raises three objections to Stark’s testimony. First, the defendant claims that battered woman’s syndrome has not gained the general acceptance in the scientific community that the defendant asserts is required for its admission. Second, the defendant argues that Stark was not an expert on the subject of battered woman’s syndrome. Finally, the defendant claims that the expert testimony should have been excluded because it invaded the province of the jury, inasmuch as the jury has the sole prerogative of assessing and determining the credibility of witnesses. We will treat these claims seriatim.

A

The defendant first claims that the subject of battered woman’s syndrome does not meet the test for admissibility of scientific evidence articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test requires that when scientific expertise is offered, the subject matter of the testimony “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Internal quotation marks omitted.) State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877 (1987). On the basis of existing literature, the defendant argues that battered woman’s syndrome has not gained general acceptance in any of various scientific communities.

This court does not apply the Frye test to all types of expert testimony, even if technical or scientific concepts are involved. In State v. Hasan, supra, 489, we noted that we have previously applied the Frye test to “innovative scientific techniques . . . [including] polygraphtesting . . . and human leukocyte antigen testing for paternity.” (Citations omitted.) See State v. McClary, 207 Conn. 233, 246, 541 A.2d 96 (1988) (finding that shaken baby syndrome is a diagnosis generally accepted in the medical field); State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625 (1966) (applying the Frye test to the use of police radar). We have found the Frye test appropriate when the experimental, mechanical or theoretical nature of the scientific evidence had the “potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.” (Internal quotation marks omitted.) State v. Hasan, supra, 490.

Nevertheless, expert testimony need not satisfy the Frye test in cases where “the jury is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge. . . . Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert’s qualifications, and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence.” (Citation omitted.) Id., 491. For example, without even discussing the Frye test, we upheld the admissibility of expert testimony on the behavioral characteristics of child sexual abuse victims. State v. Spigarolo, 210 Conn. 359, 375-77, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). In Spigarolo, the expert social worker’s specialized knowledge was derived from the evaluation or treatment of 100 to 150 cases of child sexual abuse. We upheld the admission of the expert testimony, finding that it met the prerequisite of being “helpful” to the jury. Id., 376.

In the present case, Stark did not examine the victim. He did not offer any opinion as to whether she was a battered woman or whether she exhibited the typical behavioral characteristics of a battered woman. Stark did not apply any scientific instrument or test to specific evidence in the case, nor did he use battered woman’s syndrome as a diagnostic tool. Finally, he did not apply any scientific test to a hypothetical question posed by the state. Instead, Stark’s testimony was based on his observations of a large group of battered women through the lens of his educational background and experience. The state offered Stark’s testimony in order to provide an interpretation of the facts that a lay jury might not have perceived because of its lack of experience with battered women. See State v. Kelly, 97 N. J. 178, 204-206, 478 A.2d 364 (1984); see also People v. Hampton, 746 P.2d 947, 950-51 (Colo. 1987) (Frye test inapplicable to expert testimony in rape trauma syndrome case where expert did not testify that victim suffered from the syndrome or had been raped). We conclude that satisfaction of the Frye test is not a necessary precondition for the admission of expert testimony on battered woman’s syndrome.

B

The defendant also challenges Stark’s qualifications to testify as an expert witness on battered woman’s syndrome. “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Spigarolo, supra.

The defendant claims that Stark was not qualified to testify as an expert witness about battered woman’s syndrome because he did not hold degrees in psychology or psychiatry, was not licensed to do psychological testing, had not published in psychiatric or psychological journals, and had never before testified as an expert before a jury. “The determination of the qualification of an expert is largely a matter for the discretion of the trial court. . . . The trial court’s decision is not to be disturbed on appeal unless that discretion has been abused, or the error is clear and involves a misconception of the law. ... In order to testify as an expert, an expert must demonstrate a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” (Citations omitted; internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 783-84, 621 A.2d 267 (1993).

Stark testified that his qualifications included a master’s degree in social work from Fordham University and a doctorate in sociology from the State University of New York. He was a tenured associate professor of public administration at Rutgers University and codirector of a domestic violence training project in New Haven. He also indicated that, at the time of trial, he was a visiting professor of social work at the State University of New York at Stonybrook.

As to his experience in the area of domestic violence, Stark testified that he was codirector of a Yale School of Medicine project funded by the National Institutes of Mental Health that had reviewed the medical histories of approximately 3600 women who had come to the hospital complaining of injury. He also testified that he was codirector of several other projects that had examined the relationships between domestic violence and child abuse, domestic violence and pregnancy, and the correlation between women who had attempted suicide and domestic violence. He was cochair of the United States Surgeon General’s working group on domestic violence and health, and had also published approximately fifty book chapters and professional journal articles.

We have previously upheld a trial court’s determination that Stark was qualified as an expert on battered woman’s syndrome and that his testimony was relevant in the context of a family matter to determine the issue of custody of a minor child. Id., 784-86. In light of Stark’s extensive educational background, work experience, and research in the area of battered woman’s syndrome, we conclude that the trial court did not abuse its discretion in determining that Stark was qualified as an expert on battered woman’s syndrome.

Not only was Stark qualified to testify, but his testimony focused on a subject that is beyond the knowledge and experience of the average juror. See People v. Wilson, 194 Mich. App. 599, 487 N.W.2d 822, 824 (1992). Commentators have noted that “the research data indicates that potential jurors may hold beliefs and attitudes about abused women at variance with the views of experts who have studied or had experience with abused women. In particular, males are likely to be skeptical about the fear the woman feels in an abusive relationship and about her inability to leave a setting in which abuse is threatened.” N. Vidmar & R. Schuller, “Juries and Expert Evidence: Social Framework Testimony,” 52 Law & Contemp. Probs. 133, 154 (1989); see State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989) (applying similar “beyond the understanding of the average person” test and allowing expert testimony on battered woman’s syndrome).

In the present case, Stark presented a general description of battered woman’s syndrome, based on his experience with battered women and research and study in the area of domestic violence. Stark defined the term “battered woman’s syndrome” as referring “to the behavioral and psychological consequences that many victims, but by no means all victims, experience as a consequence of living in domestic violence situations.”

Stark explained that there are certain characteristics that are commonly found in relationships involving domestic violence. First, there is the “cycle of violence,” in which “there’s a period of tension build up in the relationship and then there’s what we call the abusive episode where the batter[er] explodes and there’s violence maybe combined with other forms of force and harassment . . . and it’s at that point or soon after that point that the battered woman may be quite clear about her danger and quite forthright in seeking help. But the next phase is what we call the honeymoon phase or where the batterfer] either says he’ll never do it again or . . . enters some kind of treatment program .... And she doesn’t want the relationship to end, she wants violence to end. And she believes maybe this time it will be different. So at that point she’s likely to believe that, in fact, it won’t happen again. And she may at that point then either change her story or try to . . . do what she needs to do . . . in order to survive and to feel safe in the relationship.”

Stark testified that some battered women develop a “learned helplessness” from repeated failures to take control of the relationship. The result of such learned helplessness is that battered women fail to take advantage of subsequent opportunities to seek help and escape the battering situation.

Stark also testified: “Now, the battered woman’s syndrome includes a lot of behaviors which don’t make any sense when you understand them as an outsider, but only make sense when you understand them from the standpoint of survival and safety.” Stark testified that battered women may stay in a relationship with an abuser despite the abuse. Battered women commonly fail to report their problems or delay reporting them to the authorities or others. Such women, who have suffered extraordinary harm, commonly minimize or even deny the harm that they have suffered. Finally, there is the “paradoxical situation . . . where a woman will come in on one occasion and present a very clear and concise picture of danger that she’s in, either explaining it to her health provider or to a police officer, and then a week later completely change her story.” Stark testified that this last pattern “is one of the most common things that we see in the field.”

Stark’s testimony was consistent with the theory of battered woman’s syndrome as it has been presented and discussed in scholarly commentary. See L. Walker, The Battered Woman Syndrome (1984) pp. 86-94, pp. 95-104; R. Schuller & N. Vidmar, “Battered Women Syndrome Evidence in the Courtroom: A Review of the Literature,” 16 Law & Human Behavior 273, 274-77 (1992); C. Ewing, Battered Women Who Kill: Psychological Self-Defense as Legal Justification (1987) pp. 7-21; see generally L. Walker, The Battered Woman (1979).

Moreover, expert testimony concerning battered woman’s syndrome has been accepted by many courts when the testimony was offered by a criminal defendant to bolster a claim of self-defense. See, e.g., People v. Minnis, 118 Ill. App. 3d 345, 455 N.E.2d 209 (1983); State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985); Commonwealth v. Craig, 783 S.W.2d 387 (Ky. 1990); State v. Anaya, 438 A.2d 892 (Me. 1981); State v. Kelly, supra; Bechtel v. State, 840 P.2d 1 (Okla. Crim. App. 1992); Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989); Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988). Such expert testimony has also been accepted if offered by the prosecution to explain the recantation of the complaining witness; Arcoren v. United States, 929 F.2d 1235 (8th Cir.), cert.0 denied, U.S. , 112 S. Ct. 312, 116 L. Ed. 2d 255 (1991); and if offered to explain the victim’s delay in reporting the abuse and remaining with the defendant after the abuse. State v. Frost, 242 N. J. Super. 601, 614, 577 A.2d 1282, cert. denied, 127 N.J. 321, 604 A.2d 596 (1990); State v. Ciskie, 110 Wash. 2d 263, 272, 751 P.2d 1165 (1988); see generally J. Schroeder, “Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer,” 76 Iowa L. Rev. 553 (1991). We conclude that the subject of battered woman’s syndrome is “ ‘beyond the ken of the average juror,’ ” and therefore meets the threshold test for admissibility of expert testimony in this state. Knock v. Knock, supra, 784; People v. Wilson, supra.

Finally, Stark’s expert testimony in this case was helpful to the jury. The most important issue in this case was the credibility of the victim. Her written, signed statement alleged that she had been the victim of egregious abuse. Before the jury, the victim testified that she had not been abused and that indeed it was she who had tied up the defendant and abused him. The defendant, through cross-examination of Olofson, questioned the credibility of the victim’s written statement in view of her eighteen hour delay in making the complaint. The victim testified that she had made up the statement in order to get her husband into drug treatment. The state offered a different explanation, one beyond the knowledge and understanding of the average juror—that the statement was true, and the victim’s recantation was a pattern of typical behavior consistent with battered woman’s syndrome.

In a case directly on point, the Eighth Circuit Court of Appeals upheld the admission of expert testimony on battered woman’s syndrome to impeach an abuse victim’s recantation at the criminal prosecution of the abuser. Arcoren v. United States, supra, 1241. In Arcoren, a victim of rape and assault described the defendant’s violent sexual and physical assaults to a criminal investigator with the Bureau of Indian Affairs. Id., 1237. The victim also testified as to the assaults before a grand jury. At trial, however, the victim recanted her prior testimony and denied that the defendant had beaten and raped her. Id., 1238. The Circuit Court of Appeals noted that, as in the present case, the jury was then “faced with a bizarre situation.” Id., 1240. “A jury naturally would be puzzled at the complete about-face she made, and would have great difficulty in determining which version of [the victim’s] testimony it should believe. If there were some explanation for [the victim’s] changed statements, such explanation would aid the jury in deciding which statements were credible.” Id. Like the expert testimony in Arcoren, Stark’s testimony provided the jury in the present case with an explanation for the victim’s changed statements.

On the basis of the foregoing, we conclude that Stark was qualified to testify as an expert witness, that his testimony focused on a subject not familiar to the average person and that his testimony was helpful to the jury. Accordingly, his expert testimony was properly admitted.

C

The defendant’s final claim is that the expert testimony in this case was actually opinion testimony as to the credibility of a witness, and therefore should have been excluded because it improperly invaded the province of the jury. The defendant relies on two recently decided cases; United States v. Whitted, 994 F.2d 444 (8th Cir. 1993); State v. Cheeks, 253 Kan. 93, 853 P.2d 655 (1993); in which convictions were reversed because physician experts testified that, in their opinions, the child victims were in fact sexually abused by the respective defendants. In Whitted, the court concluded that the expert testimony, which was based on the victim’s subjective version of events, “significantly enhanced [the victim’s] believability and unfairly tilted the scales in her favor.” United States v. Whitted, supra, 447. In Cheeks, the expert witness identified a child’s crying and defecating as the two forms of behavior most likely to trigger an assault or abuse of a child, and then testified that such behavior was present and was a likely trigger of the abuse in that case. State v. Cheeks, 103.

Certainly, the jury had the right to consider Stark’s testimony in determining whether to believe the victim’s prior statement or her testimony at trial. Stark did not testify, however, that the victim was in fact battered and therefore did not comment, directly or indirectly, on her credibility. Rather, this case is similar to State v. Spigarolo, supra, 377, in which we held that a trial court did not abuse its discretion by admitting an expert witness’ testimony on the general behavioral characteristics of child abuse victims. We rejected the defendant’s claim that the testimony usurped the jury’s function of assessing the credibility of witnesses, noting that there is a “critical distinction between admissible expert testimony on general or typical behavior patterns of . . . victims and inadmissible testimony directly concerning the particular victim’s credibility.” Id., 379. In the present case, the purpose of Stark’s testimony was to present to the jury possible explanations for why a victim of abuse would completely recant her accusations, explanations that in all likelihood were beyond the jury’s experience and knowledge. Stark neither presented opinion testimony as to the credibility of any witness nor indicated whether the out-of-court statement was credible. Like the expert testimony in Spigarolo, Stark’s testimony was relevant to describe the behavior patterns typically ascribed to battered women’s syndrome. The trial court also cautioned the jury that expert testimony “is [not] binding upon you and you may disregard such testimony either entirely or in part. It is for you the triers of the facts to consider the testimony and with the other circumstances in this case, use your best judgment to determine whether or not you give any weight to the testimony and, if so, what weight you will give to it.”

Under the circumstances of this case, Stark’s expert testimony was properly admitted “to assist the jury in understanding, not whether [the victim] was a credible witness on the witness stand, but whether her conduct . . . was consistent with the pattern and profile of a battered woman.” State v. Frost, supra, 614. We conclude that the expert testimony did not invade the province of the jury in determining the credibility of witnesses.

The judgment is affirmed.

In this opinion the other justices concurred.

       At the hearing on the motion to dismiss, the defendant argued that there was insufficient evidence to bring the charges to trial due to the victim’s recantation and stated unwillingness to testify at trial. The motion was denied by the trial court, Susco, J., on the ground that the victim’s prior inconsistent statement was more credible than her testimony at the hearing. The admissibility of the prior inconsistent statement is an issue before this court in the present appeal.

       The relevant portion of the victim’s prior written statement is as follows: “I got home a little after 11 p.m., about 11:10 on December 29, 1990. I went into the house and the phone rang. Anthony, my husband, was on the phone and he asked if I could pick him up at the Midway Cafe. I did that. We went to Stop & Shop to get groceries and went home. Anthony had some cocaine on him. He smoked it in the house. I pleaded with him not to do it because he gets so crazy. He didn’t have a large amount, someone gave it to him. I had gotten a detox prescription for his heroin addiction and I knew the cocaine would not be good for him. I showered and we started watching T.V. We went to bed and he began to accuse me of cheating on him. It was probably about 3 [o’clock] in the morning. He started cutting up my clothes, underwear and things with his knife. He took things out of my pocketbook and cut up my license and social security card because they have my maiden name on them and not his name. He said he was going to tie me up and I said not to. He took a pillow and put it over my face. I couldn’t breathe. I gasped for air. He let me go and took a rope and tied my hands and feet together behind my back. It hurt. He kept putting the knife on my mouth and chest while he sat on my chest and put his knees on my arms. He said he was going to kill me. He cut the top of my lip and the bottom of my lip with the knife. He kept saying he was going to kill me and my family, my two daughters and two sons. He got up, said it didn’t matter if he goes to jail—it’s all over now, and no matter how long he was going to jail for he would get out and kill us. He also put a lighter near my genital area. It got hot. I don’t think it burned.
      “While I was still tied on the bed he started throwing the knife into the walls of the bedroom. There are some holes in the walls from it. He had a lit cigarette which he threw on the bed. It landed next to me. I thought the bedsheets would catch fire. He then said ‘I missed you,’ picked up the cigarette and put it on my chest. I moved and it rolled off of me. He came to bed and pushed me over while I was still tied. I tried to talk to him and he kept calling me names like cocksucker and douche bag.
      “He said the only reason he was keeping me alive was because he wanted me to give him a ride to Waterbury to buy drugs. Then he rested while I was still tied. At about 6 or 6:30 in the morning he cut the ropes with the knife and nicked the back of my right thigh. I didn’t see it—it felt like a cut. Anthony said I had five minutes to get dressed and give him a ride which I did. . . .We got back home about 9 or 9:30 in the morning. I tried to sleep—he wouldn’t let me. When he did the dope he calmed down, but he didn’t want to sleep and he wanted me awake also.
      “I got up and vacuumed the bedroom because he threw a glass of wine the night before and it broke. I started to cook for dinner. He wouldn’t let me call my mother to cancel. My daughters and son arrived and he finally calmed down about noon today. . . .”

       The following evidence was presented in support of the breach of the peace charge. A neighbor of the victim’s testified that on April 9, 1991, he looked out his window and saw the victim and the defendant arguing loudly on the street. When he was not looking, he heard a woman yell for help and called 911. He looked out the window again and saw the defendant block the victim as she tried to get into her car. He then saw the defendant push the victim up against another car, with his hands around her face and neck area. Police officers arrested the defendant, who was crouching down behind the stairs leading into the house. Both officers testified that the victim had red marks on her neck.

       For example, the state’s attorney asked the victim if she was telling the truth when she told Olofson that the defendant had tied her up on December 30. The victim testified: “It’s the truth that I told her that, but it’s not the truth that it happened.”

       Our holding in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), sets forth the criteria for the use of prior inconsistent written statements. We have held, however, that a tape recording of a prior statement may be admitted even though it was not signed because “the recording of the witness’ voice imparts the same measure of reliability as a signature.” State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993).

       While it is not necessary for a written, signed statement to be sworn in order for it to be admitted under the Whelan doctrine; State v. Almeda, 211 Conn. 441, 452, 560 A.2d 389 (1989); it certainly is a circumstance that adds to the reliability of the statement.

       Olofson testified that the marks had the appearance of being “reddened” and appeared to be “indentation[s].” Olofson testified that she was trained as an emergency medical services technician, and she opined that based on her training the marks were consistent with the incidents that the victim had described in her statement.

       The defendant at oral argument also claimed that the rule in State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986), applies only to the prior inconsistent statements of witnesses to crimes, and does not apply to the prior inconsistent statement of victims of crime. We are unable to ascertain any reason for making such a distinction. In State v. Hopkins, 222 Conn. 117, 609 A.2d 236 (1992), the witness whose prior inconsistent statement was properly introduced for substantive purposes was a victim of crime, although not the only victim. The witness’ prior statement “identified the defendant as the person who had approached the car and had fired the shot that killed [the other victim] and wounded her.” (Emphasis added.) Id., 121.

       In Knock v. Knock, 224 Conn. 776, 787, 621 A.2d 267 (1993), we permitted the admission of Stark’s expert opinion that the defendant was in fact a battered woman, without any mention of the “general acceptance” test. The parties in that case made no claim that the Frye test would apply to such testimony, however, and therefore we treat the question as one of first impression.

       “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Internal quotation marks omitted.) State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877 (1987). We recognize that the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. , 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), has cast some doubt on the continued viability of the Frye test. We need not, however, address this issue here.

       The defendant initially grounds Ms argument on the fact that when asked by the state’s attorney if the subject of battered woman’s syndrome is “acceptable” within the scientific community, the expert responded that there is “general agreement within the scientific community” as to the nature of battered woman’s syndrome. The defendant argues that the Frye test requires general acceptance within the scientific community, as distinguished from the slightly different language used by the state’s attorney and the expert in response. We need not address this particular contention because we conclude that the Frye test is inapplicable to the present case.

       In his brief and at oral argument, the defendant also argued that Stark did not examine the victim, and therefore his expert opinion was not based on his own personal observations, rendering him unqualified to testify. Stark’s testimony, however, was based on Ms personal knowledge of battered woman’s syndrome, which included experience with more than 200 battered women over a period of years. Stark drew on this personal knowledge to testify as to the general characteristics of battered women.

       The defendant also argues that expert testimony concerning battered woman’s syndrome should not be admitted because the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (3d Ed. 1987), an important diagnostic treatise in the medical, psychiatric, and psychological fields, does not contain any reference to the syndrome. Stark specifically disclaimed, however, that the “syndrome” is an illness or mental disorder, but instead testified that battered women are “focusing on survival and safety . . . [which] leads to these paradoxical behaviors and attitudes.” See Bechtel v. State, 840 P.2d 1, 7 (Okla. Crim. App. 1992) (rejecting a similar argument and stating that the syndrome is a mixture of both psychological and physiological symptoms but is not a mental disease); Commonwealth v. Craig, 783 S.W.2d 387, 389 (Ky. 1990) (syndrome was not mental condition and expert could qualify to testify about it although not a psychiatrist or clinical psychologist); R. Schuller & N. Vidmar, “Battered Women Syndrome Evidence in the Courtroom: A Review of the Literature,” 16 Law & Human Behavior 273, 281 (1992) (despite the label, battered woman’s syndrome is not a diagnosable mental disorder, but is rather a descriptive term that refers to the effects of abuse on a woman).

       “[PJrosecuting a batterer poses special problems. The battered woman is likely to hide the fact that she is being abused, which results in mate abuse remaining largely unreported. ... If charges are filed, the battered woman may change her mind about prosecuting the batterer and withdraw her complaint, refuse to testify as a witness, or recant.” J. Schroeder, “Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer,” 76 Iowa L. Rev. 553, 559-60 (1991).

       Of course, expert testimony, like all other evidence, must be relevant to be admitted. State v. Wade, 96 Conn. 238, 248, 113 A. 458 (1921). Expert testimony on the subject of battered woman’s syndrome is not relevant unless there is some evidentiary foundation that a party or witness to the case is a battered woman, and that party or witness has behaved in such a manner that the jury would be aided by expert testimony providing an explanation for the behavior. State v. Koss, 49 Ohio St. 3d 213, 218, 551 N.E.2d 970 (1990). In the present case, the defendant has not challenged the adequacy of the requisite foundation, and therefore we need not reach the issue.

       By noting that Stark did not testify that the victim was a battered spouse, we do not imply that such testimony would have implicitly commented on her credibility. Rather, in the context of this case, we need not decide whether an expert witness may offer his or her opinion as to whether a spouse is a battered spouse, nor decide whether such an opinion would implicitly comment on the credibility of the spouse.