State v. White ( 2020 )

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STATE OF CONNECTICUT v. JOHN WHITE
(SC 20168)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of the crime of assault in the first degree in connection with an
incident in which he attacked the victim with a box cutter, the defendant
appealed. Immediately after the attack, the victim described the assailant
to the police as a white male wearing a red hooded sweatshirt, and the
police recovered a red hooded sweatshirt and a box cutter near the
crime scene. The police subsequently were notified that the defendant’s
DNA profile was a potential match to DNA taken from the recovered
evidence. A detective, P, compiled a photographic array, and another
detective administered the array to the victim at the police station
outside of P’s presence. The victim identified the defendant from the
array and wrote on his photograph that she was ‘‘pretty certain’’ that
he was the man who had attacked her. Ten to fifteen minutes later, the
victim met with P and, unprompted by either detective, stated that,
although she had written ‘‘pretty certain’’ on the photograph, she was
‘‘absolutely certain’’ that the defendant was her assailant. The victim
then provided a written statement to P, in which she reiterated that she
meant that she was absolutely certain about her identification of the
defendant as her assailant, even though she previously had indicated
that she was pretty certain. The defendant was arrested, and he retained
private counsel to represent him, using funds provided by his wife
to pay for attorney’s fees and to retain an expert, C, on eyewitness
identification. After jury selection began, the state gave notice of its
intent to introduce DNA evidence and requested that the court order
the defendant to submit to a DNA sample. The court granted the state’s
request but continued the trial to allow the defendant an opportunity
to reframe his defense and to locate a DNA expert. The defendant then
filed a motion requesting that the court order public funding so he could
retain a DNA expert, claiming that he was indigent and that he was
constitutionally entitled to such funding. In denying the defendant’s
motion for public funding, the trial court declined to find him to be
indigent, noting, inter alia, that, pursuant to this court’s decision in State
v. Wang (312 Conn. 222), requests for public funding for ancillary defense
costs must be made to the Public Defender Services Commission via
the local public defender’s office, that the defendant had not applied to
the public defender’s office for such funding, and that there was no
authority for the trial court to order payment of a portion of the defense
costs. In light of the defendant’s concerns about having to choose
between keeping his privately retained defense counsel or applying for
public defender services, the court indicated that the defendant could
apply to the public defender’s office for funding without necessarily
changing counsel. The defendant, however, elected not to apply for
public defender services and retained his private counsel throughout
the trial. The trial court also denied the defendant’s pretrial motion in
limine, which sought to preclude the admission of the victim’s postidenti-
fication statement to P that she was absolutely certain that the defendant
was her assailant and any subsequent in-court statements regarding her
confidence at the time of trial in her identification of the defendant. At
trial, the victim and P testified about the victim’s confidence statement
after viewing the array, the victim testified that she was absolutely
certain at the time of trial that the photograph she had selected was of
her attacker, and C, the expert witness whom the defendant ultimately
retained, testified concerning the reliability of eyewitness identifica-
tions. On appeal from the judgment of conviction, the defendant claimed
that the trial court improperly denied his request for public funding
for a DNA expert and his motion in limine to preclude the victim’s
postidentification confidence statements. Held:
1. The defendant failed to establish his indigence because of his decision
not to apply to the Public Defender Services Commission via the local
public defender’s office for his requested public funding, and, accord-
ingly, the record lacked an essential factual predicate necessary for this
court to review his claim that the trial court violated his constitutional
rights by denying his motion for public funding to pay for a DNA expert
to assist in his defense solely on the ground that he had retained private
counsel: a defendant’s right to publicly funded expert or investigative
services under the due process clause of the fourteenth amendment, to
the extent that such services are reasonably necessary to formulate and
present an adequate defense to pending criminal charges, belongs only
to indigent criminal defendants, and the trial court properly declined
to find the defendant indigent and instead referred him for further
action to the Public Defender Services Commission via the local public
defender’s office, as courts are not statutorily authorized to fund ancil-
lary defense costs for indigent defendants, and, consistent with the
statute (§ 51-297) governing the determination of indigency in connec-
tion with the appointment of or request for a public defender, this court’s
decision in Wang makes clear that a defendant claiming to be indigent
and seeking public funding for ancillary defense costs should be referred
to the commission via the local public defender’s office for a determina-
tion of indigency in the first instance, subject to judicial review via
appeal to the trial court; moreover, the defendant’s choice of counsel
concerns, which were premised on the policy of the Office of the Chief
Public Defender to deny all public funding unless the defendant is repre-
sented by a public defender or assigned counsel, were unfounded on
the record of this case.
2. The trial court did not abuse its discretion in denying the defendant’s
motion in limine to preclude the victim’s postidentification confidence
statement to P and any in-court statements regarding her confidence at
the time of trial in her identification of the defendant: in light of applica-
ble case law holding that a witness’ confidence in an identification, both
at the time it was made and at trial, is a relevant factor to be considered
in the determination of whether an identification is reliable, the trial
court did not abuse its discretion in concluding that the victim’s pro-
fessed level of confidence in her identification shortly after she made
it and at trial was relevant to the jury’s determination of whether the
defendant was the victim’s assailant; moreover, the trial court reasonably
concluded that the victim’s postidentification confidence statements
were not more prejudicial than probative, as those statements would
not unduly arouse the jurors’ emotions or be so persuasive as to over-
whelm the jury’s capacity to fairly evaluate the evidence, and also reason-
ably concluded that those statements did not invade the province of
the jury, as a witness’ testimony regarding the witness’ confidence in
an identification of which the witness has personal knowledge is simply
a tool that the jury uses to evaluate the accuracy or credibility of the
identification; furthermore, in the absence of any evidence indicating a
recent shift in the relevant social science, this court declined to adopt
a categorical rule precluding the admission of evidence of a witness’
confidence in his or her identification, unless the evidence stems from
the earliest identification procedure that complies with the statute (§ 54-
1p) containing the guidelines that the police must follow in conducting
eyewitness identification procedures, because a defendant may chal-
lenge such confidence statements by presenting expert testimony on
the reliability of eyewitness testimony, as the defendant did in the pres-
ent case.
(Four justices concurring separately in one opinion)
Argued December 12, 2018—officially released March 3, 2020
Procedural History
Substitute information charging the defendant with
the crime of assault in the first degree, brought to the
Superior Court in the judicial district of Waterbury,
where the court, Murphy, J., denied the defendant’s
motion to preclude certain evidence; thereafter, the
court, Murphy, J., denied the defendant’s motion for
costs to pay for expenses associated with procuring an
expert for the purpose of presenting a criminal defense;
subsequently, the case was tried to the jury; verdict
and judgment of guilty, from which the defendant
appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom were Marc G. Ramia, senior assistant state’s
attorney, and, on the brief, Maureen Platt, state’s attor-
ney, for the appellee (state).
Charles D. Ray and Brittany A. Killian filed a brief
for The Innocence Project as amicus curiae.
Lauren Weisfeld, chief of legal services, and Deborah
Del Prete Sullivan, director of legal counsel, filed a
brief for the Office of the Chief Public Defender as
amicus curiae.
J. Christopher Llinas and Ioannis A. Kaloidis filed
a brief for the Connecticut Criminal Defense Lawyers
Association as amicus curiae.
Opinion
ROBINSON, C. J. The defendant, John White,1 appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1). On appeal,2 the defendant
claims that the trial court improperly denied his motions
(1) seeking public funds to pay for a DNA expert to
assist in his defense, and (2) to exclude certain evidence
of the victim’s confidence in her identification of the
defendant when presented with a photographic array
by the police. We disagree with the defendant’s claims
and, accordingly, affirm the judgment of the trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
On May 17, 2009, the victim, April Blanding, spent the
afternoon and evening drinking alcohol and smoking
marijuana and crack cocaine at the home of her friend,
Tara Coleman. Coleman lived on Rose Street in Water-
bury, which runs parallel to Wood Street, and the back-
yards of the homes on the two streets adjoin. At approxi-
mately 11 p.m., the victim left Coleman’s home to walk
to a nearby store to purchase a beverage.
As she approached the end of Rose Street, the victim
encountered a man, later identified as the defendant,
sitting on the porch of an abandoned house approxi-
mately twelve to twenty feet away from her. The defen-
dant had cuts on his face and was wearing a red hooded
sweatshirt. The defendant asked the victim if she was
‘‘tricking tonight,’’ and the victim replied ‘‘no’’ and con-
tinued on her way to the store. While walking back to
Coleman’s house after making her purchases, the victim
saw the defendant still sitting on the same porch.
Shortly after the victim passed the defendant, she felt
someone walking behind her. As she stepped onto Cole-
man’s driveway, the defendant tapped her on the shoul-
der and said: ‘‘Lady, guess what? You’re dead, you’re
dead, you’re dead. As of right now, you are a dead
woman.’’ The defendant tripped the victim, who landed
on her back, jumped on top of her and repeatedly
stabbed her with what later was discovered to be a box
cutter in her neck, face, head, chest, finger, and arm.
A resident on the third floor of Coleman’s building
overheard the victim shouting, looked out his window
and saw the victim and a white male wearing a red
hooded sweatshirt, and then yelled down to ask if they
were alright. At that point, after some ten to fifteen
minutes of struggling with the defendant, the victim
managed to ‘‘thr[ow] him off of [her].’’ The defendant
then stopped the attack and ran down the driveway
toward a wooded area behind Coleman’s home.
The victim ran to Coleman’s front door screaming
for help. When she saw the victim, Coleman called 911.
The victim told responding police officers that she had
been attacked in the driveway by a white male wearing
a red hooded sweatshirt. The victim was transported
by ambulance to Saint Mary’s Hospital where she under-
went surgery for her injuries.
After the police had secured the scene, officers recov-
ered a red hooded sweatshirt from the side of an aban-
doned house on Wood Street, ‘‘[toward] the end of the
driveway, right in between where the wood[ed] area
was’’ behind Rose Street. The police also found a blood-
stained box cutter in the backyard of another home on
Wood Street adjacent to Coleman’s home.
Although the initial investigation did not initially pro-
duce a suspect, approximately four years later, in 2013,
Waterbury police obtained information regarding a
potential DNA match on a piece of evidence recovered
near the crime scene. The victim went to the police
department on October 14, 2013, where she identified
the defendant in a double-blind, sequential photo-
graphic array procedure. The victim wrote on the defen-
dant’s photograph: ‘‘I . . . am pretty certain that this
is the young man who stabbed [me] 6 times on May of
2009 at 11 p.m. . . . on Rose Street in Waterbury
. . . .’’ Afterward, the victim was interviewed by Detec-
tive John Pesce, and she told him that she was in fact
‘‘absolutely certain’’ with respect to her prior identifica-
tion. Subsequent forensic testing revealed the presence
of both the defendant’s and victim’s DNA on the red
hooded sweatshirt and the victim’s DNA on the box
cutter.
The defendant was arrested in 2016 and charged with
assault in the first degree in violation of § 53a-59 (a)
(1). Jury selection began on December 7, 2016. The
following day, the state filed a notice of its intent to
introduce DNA evidence pursuant to General Statutes
§ 54-86k, as well as a motion for nontestimonial evi-
dence pursuant to Practice Book §§ 40-32 and 40-34 (6),
requesting to sample the defendant’s DNA by buccal
swab. Over the defendant’s objection, the trial court
granted the state’s motion but gave the defendant a
continuance to allow him to locate an expert and to
reframe his defense. The defendant subsequently filed
a motion seeking public funds to pay for a DNA expert,
which the trial court denied following a hearing. The
two jurors who already had been selected were
excused, and jury selection began again on December
19, 2016. The trial court then denied the defendant’s
motion to suppress the victim’s pretrial identification
of him from the photographic array, as well as his
motion in limine, which sought to preclude both the
victim’s postidentification statements and any in-court
statements regarding her confidence in the accuracy
of her identification. The jury subsequently returned a
verdict of guilty, and the trial court rendered judgment
in accordance with the verdict. The trial court sen-
tenced the defendant to a total effective sentence of
twenty years of incarceration, with a mandatory mini-
mum of five years of incarceration, consecutive to a
fifteen year sentence that the defendant is serving in
Missouri. This appeal followed.
On appeal, the defendant raises two claims. First, he
claims that the trial court abused its discretion and
violated his federal and state constitutional rights when
it denied his motion for funds for a DNA expert to assist
in his defense. Second, he claims that the trial court
abused its discretion when it denied his motion in limine
seeking to preclude certain evidence of the victim’s
confidence in her identification of the defendant when
presented with a photographic array by the police. We
address each claim in turn, setting forth additional rele-
vant facts and procedural history when necessary.
I
The defendant first claims that the trial court abused
its discretion and violated his federal and state constitu-
tional rights when it denied his motion for public funds
to obtain a DNA expert to assist in his defense in chal-
lenging the state’s DNA mixture results. The record
reveals the following additional relevant facts and pro-
cedural history. At all times relevant to this appeal, the
defendant was represented by private counsel, Attorney
Ioannis A. Kaloidis. The defendant’s wife had paid for
Kaloidis’ attorney’s fees and the expenses associated
with his retention of an eyewitness identification and
memory expert.
The day after jury selection began, the state gave
notice of its intent to introduce evidence of DNA analy-
sis and moved for permission to obtain a DNA sample
from the defendant via a buccal swab in order to com-
pare the defendant’s DNA against samples taken from
the red hooded sweatshirt and the box cutter recovered
from Wood Street. Defense counsel objected, claiming
that the state’s notice was untimely under § 54-86k (c),
which requires that such notice be given at least twenty-
one days prior to the commencement of trial, and that
allowing the state to sample the defendant’s DNA con-
stituted an unfair surprise and was prejudicial. On
December 12, 2016, the trial court overruled the objec-
tion and granted the state’s motion, finding that,
although it was ‘‘extremely bothered that [the parties
were] having this conversation three days . . . from
the beginning of evidence,’’ the state nonetheless had
established good cause to test and introduce DNA evi-
dence on the eve of trial.3 The trial court then granted
the defendant a continuance for as much time as he
needed to prepare for trial in light of the state’s late
disclosure and, with the parties’ agreement, dismissed
the two jurors who already had been selected.
The next day, December 13, 2016, the defendant filed
a motion seeking public funds to pay for a DNA expert
to assist in his defense, as well as an accompanying
memorandum of law and a financial affidavit in which
he asserted that he was indigent. In his memorandum
of law, the defendant argued that, since this court issued
its decision in State v. Wang, 312 Conn. 222, 92 A.3d
220 (2014), ‘‘it has been the practice in this state that
requests for funding go through the Public Defender
[Services] Commission [(commission)]. Such requests
have routinely been denied except in cases [in which]
counsel has been appointed as assigned counsel by
the public defender’s office. In the present case, the
undersigned [counsel] is privately retained counsel.’’
The court held a hearing on the motion on December
14, 2016, at which the defendant argued that an expert
who would evaluate the results of the state forensic
science laboratory was necessary to his defense given
the anticipated importance of DNA evidence at trial.
The defendant argued that the trial court could grant
his motion, even though he was not represented by a
public defender or assigned counsel, because his choice
of counsel was a constitutionally protected right.
After hearing argument, the trial court denied the
defendant’s motion in an oral decision. The trial court
declined to find the defendant indigent because, inter
alia, he had been represented by private counsel to this
point and his defense experts had been, or were being,
paid, and he had not applied to the public defender’s
office, leaving the trial court without access to the
results of an indigency investigation to aid its indigency
determination.4 The trial court, citing Wang, then
explained that a request for public funding for defense
expenses must be made to the commission via the local
public defender’s office and that there was no authority
for the trial court to order payment of a portion of the
defense costs. The trial court also was not convinced
that the defendant had established that a private DNA
expert was necessary to his defense, noting that ‘‘[t]he
state lab is a public institute and is going to analyze
the [DNA] results . . . [a]nd, so, it’s not clear . . .
what an expert adds to the equation on the part of the
defense.’’ Further, the trial court explained that the
defendant could apply for funds from the public defend-
er’s office without necessarily changing defense attor-
neys.5 The trial court then took a recess to allow the
defendant and Kaloidis to confer as to whether the
defendant wished to apply for public defender services.
Kaloidis subsequently informed the court that the defen-
dant had elected to retain his existing private counsel
and would not submit an application to the public
defender’s office.
On appeal, the defendant claims that the trial court
improperly denied his motion for public funds to obtain
a DNA expert. The defendant acknowledges that,
although he was indigent and had been incarcerated
for years in Missouri, his family had sufficient funds to
hire a private attorney for him, as well as an eyewitness
identification expert. The defendant claims, however,
that, when the state decided at the last minute to per-
form additional DNA testing that resulted in evidence
of DNA from both the defendant and the victim being
present on the red hooded sweatshirt, his family could
not afford the additional funds necessary for a DNA
expert. The defendant argues that the trial court had
discretion to order funds either independently or
through the commission pursuant to Wang and that his
motion for funds was denied solely because he had
private counsel in violation of his constitutional rights
under Ake v. Oklahoma, 470 U.S. 68, 76–85, 105 S. Ct.
1087, 84 L. Ed. 2d 53 (1985). In response, the state
argues that the trial court did not deny the defendant’s
motion for funds solely because he had retained private
counsel; rather, the trial court denied the defendant’s
motion because the defendant had refused to file the
application necessary for the commission to investigate
his claim of indigence. Indeed, the state argues that,
under our interpretation of General Statutes §§ 51-289
(l) and 51-292, as expressed in State v. Wang, supra,
312 Conn. 249–56, the commission is the only entity
authorized to grant requests for public funds to be used
for ancillary defense costs such as expert witnesses.
Accordingly, the state argues that the trial court prop-
erly denied the defendant’s motion because it lacked
discretion altogether to consider a request to fund ancil-
lary defense costs. We agree with the state’s argument
that the defendant failed to establish his indigence
because of his decision not to apply to the commission,
and, therefore, the record lacks an essential factual
predicate necessary for us to review his constitutional
claims under Ake.
We begin with a review of our decision in Wang,
which addressed several issues that arose from a
request by the indigent, self-represented defendant, Lis-
han Wang, for public funding to retain experts and
investigators to aid in his defense at his murder trial,
including whether a right to such funding exists and
which governmental entity, the commission or the Judi-
cial Branch, would be obligated to provide those funds.
State v. Wang, supra, 312 Conn. 224–26. Wang was found
to be indigent and was appointed public defender repre-
sentation, but he subsequently filed a motion to repre-
sent himself, which was granted by the trial court. Id.,
227. After the hearing on his motion, at which he waived
his right to counsel after being formally canvassed by
the court, Wang represented himself with the assistance
of the Office of the Chief Public Defender (OCPD) as
standby counsel. Id. Wang subsequently requested that
the trial court order public funding to enable him to
retain experts and an investigator, claiming that he was
constitutionally entitled to such experts and investiga-
tor in order to formulate and present his defense. Id.
The OCPD declined the request to provide that funding.
Id., 227–28.
Relying on the United States Supreme Court’s deci-
sion in Ake v. Oklahoma, supra, 470 U.S. 68, we con-
cluded that ‘‘an indigent self-represented criminal
defendant has a fourteenth amendment due process
right to publically funded expert or investigative ser-
vices, to the extent that such services are reasonably
necessary to formulate and to present an adequate
defense to pending criminal charges.’’6 State v. Wang,
supra, 312 Conn. 231. We further concluded that an
indigent, self-represented defendant need not accept
representation from a public defender in order to obtain
public funding for reasonably necessary ancillary
defense costs, noting that, ‘‘[w]hereas the right of self-
representation directly conflicts with the right to coun-
sel pursuant to the sixth amendment, no such conflict
exists between the right of self-representation and the
right to access the basic tools of an adequate defense
pursuant to the fourteenth amendment. Indeed, an indi-
gent defendant . . . is entitled both to the constitu-
tional right to counsel and the constitutional right to be
provided with the basic tools of an adequate defense.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 239.
Considering next which governmental entity is obli-
gated to provide the public funds sought by Wang, we
concluded that, although the commission is statutorily
authorized to fund the reasonably necessary ancillary
defense costs for indigent, self-represented defendants,7
the Judicial Branch is not so authorized. We reasoned
that, because ‘‘the statutes governing public defender
services, § 51-289 et seq., vest authority in the commis-
sion as an autonomous body for fiscal purposes, and
require the commission to approve reasonably neces-
sary defense costs prior to expenditure from the com-
mission’s budget,’’ a trial court does not ‘‘[retain] discre-
tion to authorize public funding for ancillary defense
costs for self-represented defendants based upon its
threshold determination that such costs are reasonably
necessary to an adequate defense.’’ Id., 257. In conclud-
ing that the commission was obligated to pay the ancil-
lary defense costs of Wang, an indigent, self-represented
defendant, we emphasized that he had standby counsel
appointed by the trial court; see id., 262–63 and n.37;
and that § 51-292 authorized the commission ‘‘to fund
reasonably necessary ancillary defense costs incurred
by standby counsel who, thusly appointed, is serving
pursuant to the provisions of the chapter of the General
Statutes governing public defender services,’’ meaning
that ‘‘an indigent self-represented defendant may access
funding for reasonably necessary defense costs through
standby counsel.’’ Id., 254–55; see also id., 253 (dis-
cussing General Statutes § 51-291 (11) and noting that
‘‘[t]he statutes governing public defender services
require the chief public defender to maintain a list of
attorneys who may be appointed as standby counsel
for self-represented defendants, as needed’’). We
emphasized, however, that our holding in Wang was
‘‘limited to the provision of publicly funded expert or
investigative assistance for an indigent self-represented
defendant at a criminal trial. . . . [W]e express[ed] no
view as to whether an indigent defendant represented
by pro bono counsel is entitled access to public funding
for expert or investigative assistance.’’ Id., 239 n.18.
In the present case, the defendant claims that his
motion for public funds was denied solely because he
had retained private counsel, in violation of his constitu-
tional rights, which effectively asks us to decide the
issue we left unaddressed in Wang. At the outset, how-
ever, we emphasize that the fourteenth amendment due
process right to publicly funded expert or investigative
services, to the extent that such services are reasonably
necessary to formulate and to present an adequate
defense to pending criminal charges, belongs only to
indigent criminal defendants. Id., 231; see Ake v. Okla-
homa, supra, 470 U.S. 76 (‘‘[The United States Supreme
Court] has long recognized that when a [s]tate brings
its judicial power to bear on an indigent defendant in
a criminal proceeding, it must take steps to [ensure]
that the defendant has a fair opportunity to present his
defense. This elementary principle, grounded in signifi-
cant part on the [f]ourteenth [a]mendment’s due pro-
cess guarantee of fundamental fairness, derives from
the belief that justice cannot be equal where, simply
as a result of his poverty, a defendant is denied the
opportunity to participate meaningfully in a judicial
proceeding in which his liberty is at stake.’’ (Emphasis
added.)). Before we consider any questions left open by
Wang concerning the connection between an indigent
defendant’s access to public funding for expert or
investigative services and the nature of his legal repre-
sentation, we must consider the existence of the thresh-
old factual predicate to such an inquiry, namely, the
indigency of the defendant. In contrast to Wang, in
which Wang’s indigency was undisputed; State v. Wang,
supra, 312 Conn. 226–27; the trial court in the present
case expressly declined to find that the defendant was
indigent. See footnote 4 of this opinion and accompa-
nying text.
Determining whether the trial court properly declined
to find the defendant indigent and instead referred him
to the public defender’s office requires us to consider
the respective roles of the trial court and the public
defender in that process. We previously have held that
the ‘‘trial court’s assessment of the defendant’s offer of
proof pertaining to whether he was indigent and was,
therefore, eligible for state funded expert assistance, is
a factual determination subject to a clearly erroneous
standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . .
‘‘It is the duty of the state to provide adequate means
to [ensure] that no indigent accused lacks full opportu-
nity for his defense . . . . The right to legal and finan-
cial assistance at state expense is, however, not unlim-
ited. Defendants seeking such assistance must satisfy
the court as to their indigency . . . . This has largely
been accomplished through [public defender services]
. . . which has promulgated guidelines that are instruc-
tive as to the threshold indigency determination. . . .
‘‘[General Statutes §] 51-297 (a) requires the public
defender’s office to investigate the financial status of
an individual requesting representation on the basis of
indigency, whereby the individual must, under oath or
affirmation, set forth his liabilities, assets, income and
sources thereof. . . . [General Statutes §] 51-296 (a)
requires that, [i]n any criminal action . . . the court
before which the matter is pending shall, if it determines
after investigation by the public defender or his office
that a defendant is indigent as defined under this chap-
ter, designate a public defender . . . to represent such
indigent defendant . . . . Upon a determination by the
public defender that an individual is not eligible for its
services, the individual may appeal the decision to the
court before which his case is pending.’’ (Internal quota-
tion marks omitted.) State v. Henderson, 307 Conn.
533, 540–41, 55 A.3d 291 (2012); see also Newland v.
Commissioner of Correction, 322 Conn. 664, 693, 142
A.3d 1095 (2016) (McDonald, J., dissenting) (‘‘[u]nder
the chapter of our General Statutes governing public
defender services, indigent defendant means . . . a
person who is formally charged with the commission
of a crime punishable by imprisonment and who does
not have the financial ability at the time of his request
for representation to secure competent legal represen-
tation and to provide other necessary expenses of legal
representation’’ (emphasis omitted; internal quotation
marks omitted)).
Particularly after Wang, we understand our case law
to establish that the trial court’s role in the indigency
determination is secondary to that of the public defend-
er’s office, insofar as the commission is the entity statu-
torily authorized to investigate and determine claims
of indigency through local public defender’s offices.
See State v. Martinez, 295 Conn. 758, 784–85 n.21, 991
A.2d 1086 (2010); see also State v. Flemming, 116 Conn.
App. 469, 481, 976 A.2d 37 (2009) (‘‘the office of the
public defender is the only entity upon which a statutory
duty is imposed to investigate a claim of indigency’’
(emphasis in original; internal quotation marks omit-
ted)). As we observed in Wang, ‘‘the primary purpose
of [No. 74-317, § 7, of the 1974 Public Acts (P.A. 74-
317), which was codified at . . . § 51-296, governing
the designation of public defenders for indigent defen-
dants] was the creation of [the commission] to adminis-
ter the public defender system in lieu of the judges of
the Superior Court, who previously had been responsi-
ble for that function. . . . Therefore, by designating
the commission as the agency responsible for carrying
out the purposes of the chapter governing public
defender services, the legislature has charged the com-
mission with protecting the rights of indigent criminal
defendants.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. Wang, supra,
312 Conn. 250–51; see State v. Martinez, supra, 782 (‘‘It
is the duty of the state to provide adequate means to
[ensure] that no indigent accused lacks full opportunity
for his defense . . . . This has largely been accom-
plished through [the Division of Public Defender Ser-
vices] . . . which has promulgated guidelines that are
instructive as to the threshold indigency determina-
tion.’’ (Citations omitted; internal quotation marks
omitted.)).
Indeed, the statutes governing indigent defense
expressly recognize that the trial court’s role in the
indigence determination process is secondary to that
of the commission. Section 51-297 (g) provides that,
‘‘[i]f the Chief Public Defender or anyone serving under
the Chief Public Defender determines that an individual
is not eligible to receive the services of a public defender
under this chapter, the individual may appeal the deci-
sion to the court before which the individual’s case is
pending.’’ This is where the trial court assumes its role
in the indigency determination; it has the authority to
review the public defender’s indigency determination
in light of the additional information obtained from the
public defender’s office’s investigation and that office’s
rationale for denying the defendant’s application. See
Newland v. Commissioner of Correction, supra, 322
Conn. 707–708 (McDonald, J., dissenting).
Consistent with § 51-297 (g), Wang makes clear the
imperative of referring a defendant claiming to be indi-
gent and seeking in the first instance public funding for
ancillary defense costs to the commission via the local
public defender’s office. First, unlike the commission,
the Judicial Branch is not statutorily authorized to fund
the reasonably necessary ancillary defense costs for
indigent, self-represented defendants.8 See State v.
Wang, supra, 312 Conn. 256, 256–57 n.33. Indeed, we
specifically held in Wang that, because ‘‘the statutes
governing public defender services, § 51-289 et seq.,
vest authority in the commission as an autonomous
body for fiscal purposes, and require the commission
to approve reasonably necessary defense costs prior to
expenditure from the commission’s budget,’’ a trial
court does not ‘‘[retain] discretion to authorize public
funding for ancillary defense costs for self-represented
defendants based upon its threshold determination that
such costs are reasonably necessary to an adequate
defense.’’ Id., 257. With the trial court lacking such
discretion, resort to the commission is necessary in the
first instance, subject to judicial review via appeal to
the trial court.9 See State v. Garvins, Superior Court,
judicial district of Fairfield, Docket No. FBT-CR-16-
293596-T (December 12, 2017) (65 Conn. L. Rptr. 596,
596) (relying on Wang and granting indigent defendant’s
motion for funds for expert witness, despite public
defender’s initial refusal to pay because defendant was
represented by pro bono counsel and not public
defender, and ordering that ‘‘the defendant . . . follow
the protocol of the OCPD in applying for such funds
and that the OCPD shall not unreasonably deny such
funds’’); id., 597 (concluding that indigent defendant
represented by pro bono counsel is constitutionally
entitled to public funds for expert witness); see also
State v. Thomas, 177 Conn. App. 369, 402–404, 173 A.3d
430 (trial court did not abuse its discretion by denying
defendant’s motion for costs for investigative services
because, inter alia, trial court did not make threshold
indigency finding and, therefore, lacked discretion to
grant motion pursuant to Wang), cert. denied, 327 Conn.
985, 175 A.3d 43 (2017). Moreover, requiring the defen-
dant to proceed through the commission in the first
instance is consistent with the separation of powers,
insofar as ‘‘[r]equiring the trial court to determine
whether certain experts or investigators are reasonably
necessary to the defense could potentially call the trial
court’s role as a neutral arbiter into question.’’ State
v. Wang, supra, 312 Conn. 264; see id., 263–64 (‘‘[t]he
legislature created the commission, in part, in order
to separate the administration of the public defender
system from the Judicial Branch’’). Accordingly, we
conclude that the trial court properly declined to find
the defendant indigent and instead referred him for
further action to the commission via the local public
defender’s office.
The defendant contends, however, that the trial
court’s approach raises concerns with respect to his
right to choice of counsel and futility of remedy because
‘‘the public defender routinely denies a request for
expert funds when the defendant has private counsel
. . . .’’ The OCPD, appearing as amicus curiae, confirms
that, because Wang did not determine whether a defen-
dant represented by private counsel could obtain state
funding for ancillary defense costs, the commission has
‘‘adopted a policy that only indigent pro se litigants or
individuals represented by a public defender or
assigned counsel can access funding for experts or
other expenses. If a person represented by a private
attorney seeks funding, they must also accept represen-
tation from the public defender or proceed pro se. The
private attorney must withdraw his appearance. The
case will be referred to the local public [defender’s]
office for an eligibility determination, and, if the defen-
dant is indigent, the case will be assigned to an attorney
in the office or to assigned counsel if there is a conflict
of interest.’’ At oral argument before this court, the
defendant suggested that the OCPD’s representation of
its internal policy means that he was forced to choose
between his constitutional rights because his private
counsel must first have withdrawn before he could
apply to the public defender’s office.10
We conclude that the defendant’s concerns about
futility and loss of counsel are unfounded on the record
of this case. First, we do not understand the OCPD’s
amicus brief to suggest that the relationship with private
counsel must be terminated before the commission con-
ducts an initial investigation of indigency and reviews
the application for assistance with defense costs; rather,
we understand that policy to suggest that any defendant
seeking public funding for defense costs must ulti-
mately accept representation from the public defender
or proceed as a self-represented party prior to receiving
such funding once eligibility is determined.11 Consistent
with that reading, the trial court expressly stated that
Kaloidis would be permitted to continue to represent
the defendant during the application process and
offered the defendant other options, such as continuing
to represent the defendant as a special public defender,
standby counsel, or with cocounsel, to be determined
later. See footnote 5 of this opinion and accompanying
text. Beyond establishing his indigence, the trial court’s
desire to have the defendant explore these options in
the first instance was especially apt, particularly given
the link that the court in Wang made between the com-
mission’s ancillary defense resources and its provision
of services, including standby counsel. See State v.
Wang, supra, 312 Conn. 254–55. With the defendant
having declined to follow the trial court’s instruction
to apply for the services of a public defender, the factual
predicate for his constitutional claims is simply not
present because we lack the requisite finding that he
is indeed indigent or subject to the loss of his counsel of
choice. See State v. Martinez, supra, 295 Conn. 784–85
(‘‘the record is inadequate for us to reach the constitu-
tional issue[s], as the defendant has failed to establish
the threshold requirement of his indigency’’). Accord-
ingly, we decline to consider the defendant’s remaining
constitutional claims. See, e.g., St. Paul Travelers Cos.
v. Kuehl, 299 Conn. 800, 813, 12 A.3d 852 (2011) (court
has ‘‘duty to eschew unnecessarily deciding constitu-
tional questions’’ (internal quotation marks omitted)).
II
The defendant also claims that the trial court abused
its discretion by denying his motion in limine seeking
to preclude certain evidence of the victim’s confidence
in her identification of the defendant when presented
with a photographic array by the police. The record
reveals the following additional relevant facts and pro-
cedural history. In 2013, the Waterbury police received
notice of a hit from the Combined DNA Index System
(CODIS) database,12 which linked the defendant’s DNA
profile to evidence collected during the police investiga-
tion. Detective Pesce called the victim and asked her
to come to the police station, but he was ‘‘very vague’’
when he called and did not make her aware of the
CODIS hit. On October 14, 2013, the victim went to the
police station and viewed a photographic array in a
double-blind, sequential procedure. Pesce had created
the array, and Detective Daniel Dougherty presented
the array to the victim without Pesce present. The victim
identified the defendant as her attacker and wrote on
the defendant’s photograph: ‘‘I . . . am pretty certain
that this is the young man who stabbed [me] 6 times
on May of 2009 at 11 p.m. . . . on Rose Street in Water-
bury . . . .’’
After making the identification, the victim met with
Pesce and told him, unprompted, that she wished to
clarify what she had previously written. The victim told
Pesce that, although she had written that she was
‘‘pretty certain,’’ she was in fact ‘‘absolutely certain’’
that the person she had identified was her attacker.
The victim then gave a statement to Pesce in which she
stated in relevant part: ‘‘On Friday I was contacted by
Detective Pesce and he asked me if I could come into
the [d]etective [b]ureau to look at some pictures. I came
in today and another [d]etective showed me a set of
photos. One of the [p]hotos that the [d]etective showed
me, jumped out at me and I realized it was the male
that stabbed me. I told the [d]etective that I was pretty
certain that it was the male, but I meant absolutely
certain. I realized that it was the same male without a
doubt that stabbed me on that night of May 17th 2009.
That night is still fresh in my mind and I could still see
my attacker’s face clearly in my mind. . . .’’ (Empha-
sis added.)
Prior to trial, the defendant filed two motions related
to the victim’s identification of the defendant. First,
the defendant moved to suppress the victim’s pretrial
identification of him from the photographic array on
the ground that it was unnecessarily suggestive and
unreliable. Second, he moved to preclude the victim’s
statement to Pesce that she was ‘‘absolutely certain’’
that the defendant was the person who attacked her and
any in-court statements pertaining to her confidence in
her identification of the defendant at the time of trial.
The defendant argued that the challenged testimony
would be irrelevant and unduly prejudicial, and that it
invaded the province of the jury. The trial court held
an evidentiary hearing at which the victim, Pesce and
Dougherty testified.
At the conclusion of the hearing, the trial court denied
the defendant’s two motions.13 In denying the defen-
dant’s motion in limine regarding the victim’s confi-
dence statements, the trial court relied on, inter alia,
this court’s decisions in State v. Dickson, 322 Conn.
410, 421, 141 A.3d 810 (2016), cert. denied, U.S. ,
137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), and State
v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005)
(overruled in part on other grounds by State v. Harris,
330 Conn. 91, 191 A.3d 119 (2018)), cert. denied, 547
U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006), for
the proposition that the level of ‘‘certainty of a witness
[is] a factor for the court to consider when determining
the reliability of [an] identification,’’ and that, ‘‘as a
result, clearly that information is important for the jury
to consider.’’ The trial court also concluded that such
confidence testimony does not invade the province of
the jury because the victim would be subject to cross-
examination regarding her claimed level of certainty
and because it was ‘‘going to allow the defense to pres-
ent expert testimony [on] issues of identification in
general.’’ The trial court concluded that the victim’s
certainty in her identification ‘‘is something that goes
to the weight [of the evidence], as opposed to [its]
admissibility.’’
At trial, the victim, Pesce and Dougherty testified
regarding the victim’s identification of the defendant.
In addition, the victim and Pesce testified regarding the
victim’s confidence statements. The victim testified that
she had signed the array and had written that she was
‘‘pretty certain’’ that the photograph she had selected
was of her attacker. The victim explained that, ‘‘[w]hen
I said I was pretty certain, I meant—I put it in those
words, but I meant I was absolutely certain. I just put
it down as pretty certain.’’ She testified that, ‘‘[j]ust a
few minutes after’’ she wrote on the signed array, she
told the detective that she meant ‘‘absolutely certain.’’
She said the detective asked her, ‘‘if [she] was certain
that this was the person, [then] why did [she] write
pretty certain and then write absolutely [certain] on the
other statement?’’ The victim explained: ‘‘I told him that
. . . I wanted to be absolutely sure is the reason why
I said that. I wanted to be absolutely sure that that was
the person, and I didn’t want to accuse someone that
was not the person.’’ The victim subsequently testified
that, when she made the identification, she was ‘‘abso-
lutely certain’’ that the photograph she selected was of
her attacker and that, as she sat there testifying, she
was ‘‘absolutely certain’’ that the photograph she
selected was of her attacker. Pesce testified that,
moments after Dougherty notified him that the victim
had made an identification, Pesce took a statement from
the victim, and, while taking her statement, he did not
ask how certain she was regarding the identification.
Before Pesce started taking the statement, however,
the victim spontaneously said something to the effect
of, ‘‘I identified someone and on it I put that I was pretty
certain, but I meant to say that I was absolutely certain.’’
Pesce testified that the victim made this statement
within ten or fifteen minutes of making the identifi-
cation.
The defendant then presented testimony from Kevin
Colwell, a professor of psychology at Southern Con-
necticut State University, who testified as an expert
on the reliability of eyewitness identifications. Colwell
testified that a confidence statement that is made at
the time of viewing is the most reliable and that there
appears to be no relationship between confidence state-
ments made after an initial identification and reliability.
He further testified that this is ‘‘[b]ecause the process
of having to say several times that this is the person
causes us, in general, as humans, just to become more
confident as we’ve seen the person more and more
. . . .’’
The trial court subsequently instructed the jury that
it could ‘‘consider the strength of the identification,
including the witness’ degree of certainty. Certainty,
however, does not mean accuracy.’’ The trial court also
instructed the jury that, ‘‘[w]hen assessing the credibil-
ity of the testimony as it relates to the issue of identifica-
tion, keep in mind that it is not sufficient that the witness
be free from doubt as to the correctness of the identifi-
cation of the defendant; rather, you must be satisfied
beyond a reasonable doubt of the accuracy of the identi-
fication of the defendant before you may find him guilty
on any charge.’’
On appeal, the defendant, supported by the amicus
curiae, The Innocence Project, argues that the trial
court improperly denied his motion in limine seeking to
preclude evidence of the victim’s change in confidence
following her photographic array identification of the
defendant, her recollection at trial of her confidence in
her identification at the time it was made, and her pres-
ent confidence in her identification. Challenging the
link between the victim’s postidentification confidence
statements and the accuracy of her identification, the
defendant claims that the trial court abused its dis-
cretion because the victim’s postidentification confi-
dence statements were irrelevant, more prejudicial than
probative, self-bolstering and invaded the province of
the jury. The defendant argues that the victim’s post-
identification confidence statements were not relevant
because, ‘‘[i]f there is no scientific support for a relation-
ship between [the victim’s] testimony at trial about her
present certainty or how she recalled her past certainty,
then those statements do not make it more or less
probable that her identification is accurate . . . .’’ The
amicus curiae, The Innocence Project, additionally
encourages us to adopt evidentiary rules establishing
that testimony on eyewitness certainty is admissible
only when it stems from the earliest identification pro-
cedure that complies with General Statutes § 54-1p,
Connecticut’s eyewitness identification statute. In
response, the state argues that the challenged evidence
was relevant, was not unduly prejudicial, and did not
invade the province of the jury. The state also claims
that, even if the trial court abused its discretion in
denying the defendant’s motion, the defendant has
failed to establish that such error was harmful. We agree
with the state’s argument that the trial court did not
abuse its discretion when it denied the defendant’s
motion in limine seeking to preclude evidence of the
victim’s postidentification confidence statements.
‘‘[T]he trial court has broad discretion in ruling on
the admissibility . . . of evidence. . . . The trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion.’’ (Internal quotation marks omitted.) State
v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001).
‘‘ ‘Relevant evidence’ means evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
Conn. Code Evid. § 4-1.
After the completion of briefing in the present case,
we issued our decision in State v. Harris, supra, 330
Conn. 91.14 In Harris, a defendant charged with, inter
alia, felony murder and first degree robbery challenged
the trial court’s denial of his motion to suppress an out-
of-court and a subsequent in-court identification of him
by an eyewitness, claiming that the out-of-court identifi-
cation resulted from an unnecessarily suggestive proce-
dure and that both identifications were unreliable. Id.,
95–96. We concluded that the out-of-court identification
procedure was unnecessarily suggestive but that the
identification nevertheless was sufficiently reliable to
satisfy federal due process requirements. Id., 96. We
also concluded that ‘‘the due process guarantee of the
state constitution . . . provides somewhat broader
protection than the federal constitution with respect to
the admissibility of eyewitness identification testimony
but that . . . the trial court’s failure to apply the state
constitutional standard that we [adopted in Harris] was
harmless because the court reasonably could not have
reached a different conclusion under that more
demanding standard.’’ (Footnote omitted.) Id.
In Harris, we concluded, as a matter of state constitu-
tional law, that, when an eyewitness identification alleg-
edly results from an unnecessarily suggestive proce-
dure, ‘‘the defendant has the initial burden of offering
some evidence that a system variable undermined the
reliability of the eyewitness identification. . . . If the
defendant meets this burden, the state must then offer
evidence demonstrating that the identification was reli-
able in light of all relevant system and estimator vari-
ables. . . . If the state adduces such evidence, the
defendant must then prove a very substantial likelihood
of misidentification. . . . If the defendant meets that
burden of proof, the identification must be suppressed.’’
(Citations omitted.) Id., 131. When there is evidence of
a suggestive procedure, ‘‘the trial court should consider
the eight estimator variables . . . identified in State v.
Guilbert, [306 Conn. 218, 253–54, 49 A.3d 705 (2012)]’’
in determining whether the identification is reliable.15
State v. Harris, supra, 330 Conn. 133. We explained
that ‘‘the defendant and the state may adduce expert
testimony regarding recent scientific developments that
cast light on particular factors’’ during a suppression
hearing and at trial. Id., 134. We further observed that,
‘‘even in cases in which an identification was not pre-
ceded by an unnecessarily suggestive procedure, a
defendant is entitled to present expert testimony on
the reliability of eyewitness testimony. . . . [S]uch tes-
timony satisfies the threshold admissibility requirement
. . . that [it] . . . be based on scientific knowledge
rooted in the methods and procedures of science . . .
at least with respect to the [eight estimator variables]
. . . .’’ (Internal quotation marks omitted.) Id., 118.
Significantly, we observed in Harris that ‘‘we stated
in Guilbert ‘there is at best a weak correlation between
a witness’ confidence in his or her identification and
its accuracy’ . . . whereas the court in [State v. Hen-
derson, 208 N.J. 208, 292, 27 A.3d 872 (2011)] concluded
that there is a correlation between high confidence
at the time of the identification, before receiving any
feedback or other information, and accuracy. . . . In
our view, these statements are not inconsistent. Rather,
Guilbert states the general rule and Henderson recog-
nizes an exception to that rule. In any event, to the
extent that this issue is the subject of ongoing scientific
controversy, the parties may present expert testimony
on the issue at the pretrial hearing and at trial in accor-
dance with our [decision] in Guilbert.’’ (Citations omit-
ted.) State v. Harris, supra, 330 Conn. 133–34 n.31.
Although the defendant correctly observes that Harris
addressed confidence statements made as part of an
identification, whereas the present appeal challenges
confidence statements made after an identification pro-
cedure, we nevertheless find our conclusions in that
case instructive in the present appeal.
Harris was decided as a matter of federal and state
constitutional law. Nevertheless, we observed that, ‘‘[i]n
the absence of evidence of a suggestive procedure or
other extraordinary circumstances . . . we continue
to believe that evidence relating solely to estimator
factors that affect the reliability of the identification
goes to the weight, not the admissibility, of the identifi-
cation. See Perry v. New Hampshire, [565 U.S. 228,
237, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012)] (‘[t]he
[c]onstitution . . . protects a defendant against a con-
viction based on evidence of questionable reliability,
not by prohibiting introduction of the evidence, but by
affording the defendant means to persuade the jury that
the evidence should be discounted as unworthy’); see
also id. (‘juries are assigned the task of determining the
reliability of the evidence presented at trial’ unless ‘[the]
evidence is so extremely unfair that its admission vio-
lates fundamental conceptions of justice’ . . .); State
v. Guilbert, supra, 306 Conn. 251 n.31 (this court’s
‘approach to eyewitness identification testimony [that
is not tainted by improper procedure] is exactly the sort
of approach that Perry encourages’); State v. Ledbetter,
supra, 185 Conn. 612 (‘challenges [relating to the relia-
bility of identifications that are not tainted by improper
procedure] go to the weight rather than to the admissi-
bility of the evidence’). Accordingly, like the court in
Henderson, we conclude that a pretrial hearing ordi-
narily is not required when there is no evidence of a
suggestive procedure. See State v. Henderson, supra,
208 N.J. 293–94. Indeed, even the Supreme Court of
Oregon, which concluded that an identification that
was not preceded by a suggestive procedure may be
inadmissible under that state’s ordinary rules of evi-
dence, has recognized that ‘trial courts will continue
to admit most eyewitness identifications. That is so
because, although possible, it is doubtful that issues
concerning one or more of the estimator variables that
[the court has] identified will, without more, be enough
to support an inference of unreliability sufficient to
justify the exclusion of the eyewitness identification.
In that regard, [the court] anticipate[s] that when the
facts of a case reveal only issues regarding estimator
variables, defendants will not seek a pretrial ruling on
the admission of the eyewitness identification.’ State v.
Lawson, [352 Or. 724, 762, 291 P.3d 673 (2012)]. Thus,
that court recognized that evidence relating to estimator
variables, standing alone, ordinarily will not render an
identification inadmissible.’’ State v. Harris, supra, 330
Conn. 132–33.
In the present case, the trial court’s decision to admit
evidence of the victim’s postidentification confidence
statements and expert testimony from the defendant
concerning the connection between confidence state-
ments and reliability and accuracy allowed for the pre-
sentation of current scientific evidence on the relation-
ship between confidence and accuracy, while also
leaving to the jury the ultimate decision of which evi-
dence to credit. Moreover, there was no evidence of a
suggestive procedure in this case, and the defendant
does not challenge in this appeal the trial court’s denial
of his motion to suppress the identification itself. In
Harris, we noted that, ‘‘[i]n the absence of evidence of
a suggestive procedure or other extraordinary circum-
stances . . . evidence relating solely to estimator fac-
tors that affect the reliability of the identification goes to
the weight, not the admissibility, of the identification.’’
(Emphasis added.) Id., 132. Among those estimator fac-
tors is the confidence of the eyewitness. Id., 124 n.26.
Accordingly, we conclude that the trial court did not
abuse its discretion in concluding that the victim’s confi-
dence statements were relevant evidence.
Moreover, under the case law governing at the time
of the trial court’s decision on the motion to suppress,
a witness’ confidence in an identification, both at the
time it was made and at trial, is a relevant factor to be
considered in determining whether an identification is
reliable as both a constitutional and evidentiary matter.
See Manson v. Brathwaite, 432 U.S. 98, 108, 115–16,
97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) (level of certainty
testified to at trial was factor that supported reliabil-
ity of identification); Neil v. Biggers, 409 U.S. 188,
195–96, 200–201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)
(same); State v. Dickson, supra, 322 Conn. 421 (‘‘ ‘level
of certainty’ ’’ is factor to be considered in determining
whether identification made during unnecessarily sug-
gestive procedure is reliable);16 State v. Crosby, 182
Conn. App. 373, 409, 190 A.3d 1 (fact that eyewitnesses
testified at suppression hearing that they were ‘‘100
percent certain at the time of the identification that the
defendant was the perpetrator’’ supports reliability of
identification), cert. denied, 330 Conn. 911, 190 A.3d 1
(2018). In light of this existing case law, it was not an
abuse of discretion for the trial court to conclude that
the victim’s professed level of confidence in her identifi-
cation shortly after her identification and at trial was
relevant to the jury’s determination of whether the
defendant was the individual who attacked the victim.
We note that the victim’s confidence statement made
shortly after her identification, in which she said she
was ‘‘absolutely certain,’’ was relevant to more than
just the reliability of her identification; additionally, it
clarified the meaning of what she wrote on the photo-
graph when she initially identified the defendant as
her attacker. The evidence showed that, within ten or
fifteen minutes of her first confidence statement written
on the photograph of the defendant, the victim,
unprompted, told the police that the words she wrote
did not accurately demonstrate her level of confidence
at the time she made the initial identification. Because,
as the defendant concedes, the confidence statement
made by the victim at the time of the identification
‘‘may have some relationship to the identification’s
reliability,’’ it was not arbitrary or unreasonable for the
trial court to conclude that evidence of what the victim
meant by her initial confidence statement was relevant,
particularly when such evidence came without prompt-
ing by the police.
The defendant also claims that the victim’s postidenti-
fication confidence statements regarding her identifica-
tion were more prejudicial than probative. Pursuant to
the Connecticut Code of Evidence, ‘‘[r]elevant evidence
may be excluded if its probative value is outweighed
by the danger of unfair prejudice or surprise, confusion
of the issues, or misleading the jury, or by considera-
tions of undue delay, waste of time or needless presen-
tation of cumulative evidence.’’ Conn. Code Evid. § 4-
3. ‘‘Situations in which relevant evidence should be
excluded because of prejudice include: (1) if the facts
offered may unduly arouse the jury’s emotions, hostility,
or sympathy; (2) if the proof and answering evidence
it provokes may create a side issue that will unduly
distract the jury from the main issues; (3) if the evidence
offered and the counterproof will consume an undue
amount of time; and (4) if the defendant, having no
reasonable ground to anticipate the evidence, is unfairly
surprised.’’ E. Prescott, Tait’s Handbook of Connecticut
Evidence (6th Ed. 2019) § 4.5.1, p. 151. We observe that
the victim’s postidentification confidence statements
do not fit neatly into the conventional categories of
what constitutes unduly prejudicial evidence. The
defendant’s argument appears to be that, because eye-
witness testimony is likely to be believed by jurors when
offered with a high level of confidence, the victim’s
confidence statements were prejudicial given their
‘‘minimal’’ probative value. We do not agree that such
confidence statements would unduly arouse the emo-
tions of the jurors or be so persuasive as to overwhelm
the jury’s capacity to fairly evaluate the evidence in
the case. Further, as noted previously, it was neither
arbitrary nor unreasonable for the trial court to con-
clude that the confidence statements were relevant or
more than ‘‘minimally’’ probative. Under these circum-
stances, it was not arbitrary or unreasonable for the trial
court to conclude that the victim’s postidentification
confidence statements were not more prejudicial
than probative.
The defendant further claims that an eyewitness’ tes-
timony regarding confidence in a prior identification is
self-bolstering and invades the province of the jury.
‘‘Testimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the
trier of fact . . . .’’ Conn. Code Evid. § 7-3 (a). The
defendant relies on case law observing that a witness
may not comment on another witness’ credibility and
that an expert witness is not permitted to give an opin-
ion as to whether another witness is lying or telling the
truth. See, e.g., State v. Singh, 259 Conn. 693, 706–708,
793 A.2d 226 (2002); E. Prescott, supra, § 7.10.4, p. 475.
Although questions that require a witness to express
an opinion on the credibility of another witness invade
the jury’s province because the jury is the exclusive
judge of credibility; see State v. Singh, supra, 707; a
witness’ testimony regarding her own confidence in
her identification does not invade the jury’s province
because such testimony, regarding something of which
the witness has personal knowledge, is simply a tool
to be used by the jury to evaluate the accuracy or
credibility of the witness’ identification. For that reason,
it was not arbitrary or unreasonable for the trial court
to conclude that the witness’ postidentification confi-
dence statements did not invade the province of the
jury.
Finally, we address the suggestion of the amicus
curiae, The Innocence Project, that we adopt eviden-
tiary rules establishing that testimony concerning eye-
witness certainty should be admitted only when it stems
from the earliest identification procedure that complies
with § 54-1p, Connecticut’s eyewitness identification
statute.17 The Innocence Project argues that evidence of
eyewitness certainty, in all other circumstances, lacks
sufficient reliability, relevance, and probative value. We
decline The Innocence Project’s invitation to establish
a categorical rule concerning the admission of postiden-
tification confidence statements.
The Innocence Project, relying on social science
research, emphasizes that confident eyewitnesses are
often inaccurate and that eyewitness confidence can
be an extremely influential factor in jury determinations
of an eyewitness’ accuracy. See G. Wells et al., ‘‘The
Confidence of Eyewitnesses in Their Identifications
from Lineups,’’ 11 Current Directions Psychol. Sci. 151,
151, 153 (2002) (in study, ‘‘[m]istaken identification by
eyewitnesses was the primary evidence used to convict
innocent people whose convictions were later over-
turned by forensic DNA tests,’’ and ‘‘three fourths of
these convictions of innocent persons involved mis-
taken eyewitness identifications, and, in every case, the
mistaken eyewitnesses were extremely confident, and,
therefore, persuasive at trial’’); Massachusetts Supreme
Judicial Court Study Group on Eyewitness Evidence,
Report and Recommendations to the Justices (July 25,
2013) p. 20, available at http://www.mass.gov/courts/
docs/sjc/docs/eyewitness-evidence-report-2013.pdf
(last visited February 24, 2020) (‘‘eyewitness confidence
is the single most influential factor in juror determina-
tions regarding the accuracy of an eyewitness identifica-
tion’’ (internal quotation marks omitted)). The Inno-
cence Project argues that eyewitness statements can
be relevant and probative when they are the result of
procedures that minimize the possibility of suggestion
and memory contamination,18 such as the procedures
endorsed by the legislature in § 54-1p. However, confi-
dence statements beyond those captured at the initial
identification procedure are more prejudicial than pro-
bative because a witness’ sincerely held belief cannot
be effectively challenged on cross-examination.
We decline to categorically conclude that there is no
correlation between a witness’ postidentification confi-
dence in his or her identification and the accuracy of
that identification, especially given our recent reaffir-
mation in Harris of the process that already exists,
following Guilbert, to address concerns regarding the
link between confidence and accuracy. See State v.
Harris, supra, 330 Conn. 132 (‘‘[i]n the absence of evi-
dence of a suggestive procedure or other extraordinary
circumstances . . . evidence relating solely to estima-
tor factors that affect the reliability of the identification
goes to the weight, not the admissibility, of the identifi-
cation’’). In Harris, we concluded that, ‘‘as an eviden-
tiary matter, and even in cases in which an identification
was not preceded by an unnecessarily suggestive proce-
dure, a defendant is entitled to present expert testimony
on the reliability of eyewitness testimony.’’ Id., 118.
Such expert testimony may properly challenge the relia-
bility of postidentification confidence statements based
on relevant science. That is precisely what happened
in the present case. The trial court admitted the witness’
confidence statements, permitted the defendant’s
expert witness to testify about the reliability of eyewit-
ness testimony,19 and appropriately instructed the jury
that it could ‘‘consider the strength of the identification,
including the witness’ degree of certainty. Certainty,
however, does not mean accuracy.’’ The trial court also
instructed the jury that, ‘‘[w]hen assessing the credibil-
ity of the testimony as it relates to the issue of identifica-
tion, keep in mind that it is not sufficient that the witness
be free from doubt as to the correctness of the identifi-
cation of the defendant; rather, you must be satisfied
beyond a reasonable doubt of the accuracy of the identi-
fication of the defendant before you may find him guilty
on any charge.’’
The Innocence Project has failed to demonstrate any
great shift in the relevant science since our decision in
Harris that would warrant the imposition of a per se
exclusionary rule or a departure from the process enu-
merated in Guilbert, Dickson, and Harris, which allows
for the admission of both postidentification confidence
statements and expert testimony to challenge the relia-
bility and accuracy of those statements. Accordingly,
we conclude that the trial court did not abuse its discre-
tion by denying the defendant’s motion in limine seeking
to preclude evidence of the victim’s postidentification
confidence in her identification of the defendant as
her attacker.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant also appears to be known as ‘‘John Kryzak.’’
2
The defendant appealed from the judgment of conviction to the Appellate
Court, and we subsequently granted his motion to transfer the appeal to
this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.
3
On appeal, the defendant does not challenge this ruling.
4
In its decision, the trial court noted that ‘‘the defendant has been repre-
sented by private counsel since the beginning of this case, that he has been
receiving, whether it’s from his pocket or someone else’s pocket, his attorney
is being paid. His experts have been paid or are in the process of being
paid. . . . I cannot make a finding [that] the defendant is indigent and has
no means to pay for the services that he can—I cannot make a finding that
he doesn’t have any source of funds. I certainly [can] make a finding that
he has no income and no assets based on his testimony, but I also cannot
make a finding that he has no other sources of assets.’’ Significantly, the
trial court observed that, because the defendant had not yet applied to the
public defender’s office, the trial court did not, at the time of its decision,
have access to the results of an indigency investigation.
5
The trial court also suggested that the defendant could waive counsel
and have standby counsel appointed, attempt to have the public defender’s
office make an arrangement with Kaloidis, ask the public defender’s office
to file an appearance in addition to Kaloidis’ appearance, or seek representa-
tion by the public defender’s office.
The trial court then clarified its ruling, which was made in the presence
of both the defendant and Kaloidis: ‘‘I know you’ve indicated [that the
defendant] does not want to apply for the public defender, but you can talk
to him a little bit more about what that will mean. If he wishes to apply
for the public defender, you know, for the purpose of an investigation on
indigency, or for the purpose of him actually being represented by the public
defender’s office, and, as I said, whether that means you represent him as
a special public defender or someone comes in as a cocounsel, or whatever
scenario works out. I’ll allow you to investigate that and him to apply.
‘‘So, what I will do is this. I’m going to take a recess; you can talk to him.
If you feel it’s appropriate, then he should make an application for the public
defender services. And, if that occurs, then I will hear that motion in front
of me. Someone obviously from the public defender’s office needs to appear
in front of me to disclose the result of [its] investigation, and then I will
rule if there is an application. If there is no application for [the] public
defender, then we will discuss scheduling.’’
6
In Wang, we observed as a preliminary matter ‘‘that the right articulated
in Ake is not contingent upon the penalty sought or the field of assistance
demanded, so long as that assistance is reasonably necessary for the indigent
defendant to have a fair opportunity to present his defense.’’ (Internal quota-
tion marks omitted.) State v. Wang, supra, 312 Conn. 236–37.
7
In Wang, we observed that ‘‘implicit in the phrase ‘upon approval of the
commission’ in § 51-292 is the recognition that the commission may use
its own established procedures for evaluating whether ancillary costs are
reasonably necessary.’’ State v. Wang, supra, 312 Conn. 256.
8
In Wang, ‘‘we implicitly conclude[d] that the Judicial Branch is not
authorized to pay expert or investigative fees that are reasonably necessary
to an indigent self-represented litigant’s defense. . . . Although the legisla-
ture included reasonably necessary ‘costs of defense’ within the commis-
sion’s budget in § 51-292, the legislature did not similarly include such
expenses within the budget of the Judicial Branch. Thus, ordering the Judi-
cial Branch to provide funding for reasonably necessary ancillary defense
costs in the present case, or in any case, would effectively usurp the power
of the legislature to devise a state budget. Out of respect for the will of the
legislature, we therefore conclude that the commission must provide funding
for reasonably necessary ancillary defense costs of indigent, self-repre-
sented defendants.
‘‘Additionally, our conclusion that the commission, and not the Judicial
Branch, is authorized to fund reasonably necessary defense costs for indigent
self-represented defendants is consistent with the legislature’s intent to
create separation between the public defender system and the Judicial
Branch. See Gipson v. Commissioner of Correction, [257 Conn. 632, 648,
778 A.2d 121 (2001)] (‘the primary purpose of P.A. 74-317 was the creation
of a public defender services commission to administer the public defender
system in lieu of the judges of the Superior Court, who previously had been
responsible for that function’).
‘‘While the legislature could ultimately decide to provide for an alternative
source of funding for the expenses at issue . . . we conclude that, under
the existing legislation, the commission is presently authorized to fund the
reasonably necessary ancillary defense costs of indigent self-represented
defendants.’’ (Citation omitted.) State v. Wang, supra, 312 Conn. 256–57 n.33.
9
We acknowledge the potential tension between our analysis in the pres-
ent case and in this court’s decision in State v. Martinez, supra, 295 Conn.
758, a pre-Wang case in which we considered whether the trial court had
properly denied the request of the defendant, Luis Norberto Martinez, for
a state funded DNA expert on the ground that he had failed to sustain his
burden of proving his indigence. A public defender was appointed to repre-
sent Martinez when he was arraigned, but, when the case was transferred
to part A of the trial court, private counsel appeared in lieu of the public
defender. Id., 778. In light of the results of a DNA test, Martinez filed a
motion asking the court to appoint a DNA expert. Id., 779–80. The state
responded to the motion by arguing that Martinez had not proven his indi-
gence and had not provided the court with an adequately specific request
for expert assistance. Id., 780. The trial court denied the motion on the basis
of, inter alia, ‘‘ ‘the availability of funds to [Martinez] that were used for
other purposes that could have been used for this.’ ’’ Id., 780–81. On appeal,
we concluded that the trial court’s determination that Martinez did not meet
his burden of proving indigency and, thus, was not entitled to a state funded
expert, was not clearly erroneous. Id., 783–84; see id., 784 (This court noted
the lack of evidence in support of Martinez’ indigency, including the fact
that his financial affidavit ‘‘did not include any information concerning his
liabilities or assets or those of his mother with whom he was living. Moreover,
as the trial court recognized, [Martinez] was represented by private counsel
after refusing to permit a public defender to represent him.’’ (Footnote
omitted.)). Accordingly, we further concluded that ‘‘the record [was] inade-
quate for us to reach the constitutional issue, as [Martinez had] failed to
establish the threshold requirement of his indigency.’’ Id., 784–85. To the
extent that Martinez may be read to afford the trial court the discretion to
make an indigency finding in the first instance, we conclude that it is no
longer good law in light of the subsequent statutory analysis in Wang.
10
The defendant’s supplemental brief echoes this concern, stating that
the OCPD policy that ‘‘private counsel must first withdraw before the public
defender will even consider eligibility . . . creates a significant risk that
the defendant might end up without any counsel . . . .’’ (Citation omitted;
footnote omitted.)
11
The defendant’s reading of the OCPD amicus brief runs counter to our
understanding of the timing of the public defender application process. For
example, as was discussed in colloquy at oral arugment before this court,
it would be extraordinarily unusual for a trial court to allow defense counsel
to withdraw prior to trial in the absence of substitute counsel, unless the
client had properly elected the right of self-representation. Additionally,
even if an applicant for public defender services is found to be indigent,
that applicant need not accept public defender representation. See, e.g.,
Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562
(1975) (‘‘a defendant in a state criminal trial has a constitutional right to
proceed without counsel when he voluntarily and intelligently elects to do
so’’ (emphasis in original)). Ultimately, we are not convinced that, simply
by applying to the public defender’s office, the defendant would be compelled
to forgo his right to counsel in order for the public defender’s office to
make an indigency determination. We simply do not know what the commis-
sion would have done in the present case because the defendant declined
to apply to the commission, which has the capacity and statutory authority
to make the requisite threshold indigency determination.
12
‘‘Beginning in 1994, Congress instructed the [Federal Bureau of Investi-
gation] to establish and maintain an index of DNA samples from convicted
criminals, crime scenes, and unidentified human remains. . . . In . . .
2000, Congress enacted the first federal statute affirmatively directing con-
victed felons to submit DNA samples to the national database. Under the
DNA Analysis Backlog Elimination Act of 2000 . . . individuals convicted
of a qualifying [f]ederal offense must provide a tissue, fluid, or other bodily
sample for analysis. . . . After a sample is collected, unique identifying
information is obtained for each felon by decoding sequences of junk DNA,
which were purposely selected because they are not associated with any
known physical or medical characteristics. . . . The DNA profiles are then
loaded into CODIS, a national database that also contains profiles generated
by state DNA collection programs, as well as DNA samples obtained from
the scenes of unsolved crimes. . . . A convicted felon’s failure to cooperate
constitutes a class A misdemeanor and may be punished by up to one year
in prison and a fine of as much as $100,000.’’ (Internal quotation marks
omitted.) State v. Webb, 128 Conn. App. 846, 852–53 n.3, 19 A.3d 678, cert.
denied, 303 Conn. 907, 32 A.3d 961 (2011).
13
For purposes of this issue, the defendant does not challenge the trial
court’s ruling on his motion to suppress the identification from the photo-
graphic array. Additionally, the parties agree that the victim’s written state-
ment that she was ‘‘pretty certain’’ the photograph she had written on was
of her attacker was admissible.
14
On October 26 and November 8, 2018, we granted the parties permission
to file supplemental briefs, which addressed, inter alia, the effect of State
v. Harris, supra, 330 Conn. 91, on this appeal.
15
The eight estimator variables that we identified in Guilbert are: ‘‘(1)
there is at best a weak correlation between a witness’ confidence in his or
her identification and the identification’s accuracy; (2) the reliability of an
identification can be diminished by a witness’ focus on a weapon; (3) high
stress at the time of observation may render a witness less able to retain
an accurate perception and memory of the observed events; (4) cross-racial
identifications are considerably less accurate than identifications involving
the same race; (5) memory diminishes most rapidly in the hours immediately
following an event and less dramatically in the days and weeks thereafter;
(6) an identification may be less reliable in the absence of a double-blind,
sequential identification procedure; (7) witnesses may develop unwarranted
confidence in their identifications if they are privy to postevent or postidenti-
fication information about the event or the identification; and (8) the accu-
racy of an eyewitness identification may be undermined by unconscious
transference, which occurs when a person seen in one context is confused
with a person seen in another.’’ State v. Guilbert, supra, 306 Conn. 253–54.
16
In State v. Dickson, supra, 322 Conn. 448 n.32, we concluded that cross-
examination is a ‘‘sufficiently effective tool’’ to test the reliability of a witness’
in-court statement in which the witness expresses a higher degree of confi-
dence than in that same witness’ prior out-of-court statement. We observed
that a defendant ‘‘can present expert testimony that there is a weak correla-
tion between confidence and accuracy, that memory degrades over time, and
that witnesses may develop unwarranted confidence in their identifications
if they are privy to postevent or postidentification information . . . .’’ (Inter-
nal quotation marks omitted.) Id. If cross-examination is a sufficiently effec-
tive tool to test the reliability of an in-court statement in which the witness
expresses a higher degree of confidence than in a prior out-of-court state-
ment, then it is also a sufficiently effective tool to test the reliability of an
in-court statement that involves the same confidence level as a statement
given only minutes after an initial identification, as was the situation in the
present case.
17
We address The Innocence Project’s well briefed request that we adopt
an evidentiary rule on this point, even though the defendant does not formally
ask us to do so. See, e.g., Commissioner of Public Safety v. Freedom of
Information Commission, 312 Conn. 513, 550 n.35, 93 A.3d 1142 (2014)
(‘‘[a]lthough an amicus brief can be helpful in elaborating issues properly
presented by the parties, it is normally not a method for injecting new issues
into an appeal, at least in cases [in which] the parties are competently
represented by counsel’’ (internal quotation marks omitted)). We reach The
Innocence Project’s request because, were we to agree with the defendant’s
core evidentiary arguments—particularly with respect to relevance, bolster-
ing, and prejudice exceeding probative value—we would, in effect, create the
per se bar sought by The Innocence Project. Put differently, The Innocence
Project’s arguments on this point use social science data to support the
arguments raised by the defendant, and we do not read them to seek relief
different from that sought by the defendant, which is similarly limited to
the admissibility of eyewitness confidence statements taken outside the
§ 54-1p procedure.
18
The Innocence Project cites a number of studies to support the proposi-
tion that witness confidence is susceptible to, and can be inflated by, sugges-
tion and postconfirmation feedback. We observe that, in the present case,
there is nothing in the record to suggest that the victim’s confidence state-
ments resulted from, or were inflated by, suggestion or postconfirmation
feedback. In fact, the defendant has not challenged the initial identification
on the ground that it was unduly suggestive, and the record indicates that
the defendant’s clarifying statement given to Pesce shortly following her
initial identification was given unprompted by the police. In the absence of
a record suggesting the influence of suggestion or feedback, we decline
The Innocence Project’s invitation to speculate as to whether the victim’s
memory was contaminated.
19
Colwell, the defendant’s expert witness, testified, inter alia, that confi-
dence statements made at the time of an initial viewing are more reliable,
that there does not appear to be a relationship between confidence state-
ments that are made subsequent to an initial viewing and reliability, and
that subsequent confidence statements are not correlated with reliability
or accuracy.