State v. White

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STATE v. WHITE—CONCURRENCE
D’AURIA, J., with whom PALMER, McDONALD and
ECKER, Js., join, concurring. I agree fully with part II
of the majority opinion. I also agree with the majority’s
conclusion in part I of its opinion that there is an insuffi-
cient record in the present case to afford the defendant,
John White, review of his constitutional claim, let alone
the new trial he requests on this direct appeal. Although
I join the majority’s opinion, I write separately because
over the course of a quarter of a century as a civil
servant, I have developed what I humbly believe to be
a finely tuned ear to governmental refrains of ‘‘not my
job’’ and ‘‘we don’t have a budget for that.’’ Thus, I feel
compelled to comment on how often this bureaucratic
jockeying can strike a discordant note that does not
focus appropriately on the rights of the accused.
The defendant denies it was he who, in 2009, stabbed
the victim with a box cutter and caused her serious
injuries while she walked back to a friend’s home from
the store she had gone to for something to drink. The
defendant went to trial without the assistance of a DNA
expert to counter the state’s expert, or at least to con-
sult for purposes of cross-examination. This was per-
haps not advisable. See P. Giannelli, ‘‘Ake v. Oklahoma:
The Right to Expert Assistance in A Post-Daubert,
Post-DNA World,’’ 89 Cornell L. Rev. 1305, 1315 (2004)
(‘‘[f]ew defense attorneys can deal with this type of
sophisticated evidence—which raises issues ‘at the cut-
ting edge of modern law and science’—without expert
assistance’’ (footnote omitted)). The defendant claims
this was not his preference but that, instead, the actions
and inactions of several state agencies combined to
place him in this predicament.
In 2013, the Waterbury police obtained information
about a potential DNA match on a red sweatshirt recov-
ered near the crime scene. Soon thereafter, the victim
identified the defendant in a double-blind, sequential
photographic array procedure. As the majority indi-
cates, there is some dispute about how certain the vic-
tim said she was about her identification. Not until 2016
was the defendant arrested and charged with assault
in the first degree in violation of General Statutes § 53a-
59 (a) (1).
Two days after jury selection began, the state gave
notice of its intent to offer DNA evidence pursuant to
General Statutes § 54-86k and moved to sample the
defendant’s DNA by buccal swab pursuant to Practice
Book § 40-34 (6). The state conceded at the time that
this notice and motion were clearly untimely under § 54-
86k (c). Although the state did not seek to justify (or
apologize for) the late disclosure, the trial court—while
emphasizing that ‘‘this is not an excuse’’ and not the
proper way to try cases—was moved to put on the
record that the case had been assigned to another prose-
cutor before being reassigned to the prosecutor who
tried the case and provided the late disclosure. For its
part, the state focused on the fact that, in its view, there
was no real prejudice to the defendant because ‘‘the
DNA evidence was present from the onset.’’ By this it
appears that the state meant that the arrest warrant
indicated that a DNA sample taken from the red
sweatshirt had generated a ‘‘hit’’ from the CODIS DNA
database,1 linking the defendant to the DNA sample and
leading the police to focus on him as a suspect.2
Over the defendant’s objection, the trial court permit-
ted the state to offer DNA evidence at trial and granted
the state’s motion for the buccal swab. To mitigate any
prejudice to the defendant, however, the trial court
suspended jury selection, dismissed the two jurors
already selected, and permitted the defendant a contin-
uance for as much time as he needed to attempt to
locate an expert, reframe his defense, and prepare for
trial in light of the state’s late disclosure.3
The next day, the defendant filed with the trial court
a motion for costs associated with the retention of a
DNA expert. He argued that the state’s late disclosure
caused him a different kind of prejudice that could
not be cured simply by a continuance. Particularly, the
defendant’s counsel, Attorney Ioannis A. Kaloidis, rep-
resented to the court that the defendant’s wife had
paid for his private counsel and for expenses related
to retaining an eyewitness identification and memory
expert. The defendant claims, however, that when the
state notified him after jury selection had begun of its
intent to perform additional DNA testing, which later
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 testi-
fied on the record that he had no sources of income,
owned no property and had no money in any bank
account.
The trial court denied the defendant’s motion for
costs because it determined that the defendant was
required to seek funding from the Public Defender Ser-
vices Commission (commission) and, thus, the court
could not make a finding of indigency. The trial court
then provided the defendant with the opportunity to
file an application with the commission to investigate
his claim of indigency but the defendant declined.
As I have mentioned, I ultimately agree that the record
is inadequate in this case to address the defendant’s
constitutional claim or to afford him relief. Specifically,
as I will discuss, because the defendant never filed an
application with the commission, it is not clear that the
commission would have in fact required him to choose
between receiving funding and continued representa-
tion by his private attorney, thereby potentially bur-
dening his constitutional right to counsel of his choice.
Additionally, despite the defendant’s unchallenged tes-
timony, it is not perfectly clear on this record that the
defendant would have been found indigent by the com-
mission, or could have been found indigent by the court.
Nevertheless, I am troubled by several aspects of this
case.
First, I am concerned how the actions and inactions
of different state actors—focused on their own mis-
sions—might in some cases combine to jeopardize a
defendant’s constitutional rights. I will address these
actors in turn.
Like the trial court, I cast no aspersions of bad faith
on the prosecution. Most of us, while in the practice
of law or in public service, have missed deadlines or
been overwhelmed by other demands. However, it is too
easy for the state simply to acknowledge its untimely
disclosure, argue that the public interest should not
suffer for the prosecutor’s mistake, and suggest that
with a continuance all will be well. No one is well
served when rules are not followed. Putting aside the
inconvenience and cost to the court, to opposing coun-
sel and to jurors summoned and discharged, a late dis-
closure, as in the present case, might prejudice an
accused’s constitutional rights, or at least create a claim
on appeal that could have been obviated. And a continu-
ance of the trial—which, in this case, was in its incipient
stage—will not necessarily cure all the harm. In reliance
on a firm trial date and the state’s actions or inactions,
the defendant and his counsel are likely to have taken
positions or made choices that will likely be held against
the defendant as ‘‘strategic’’ if he is convicted and chal-
lenges his conviction in another forum. See, e.g., Bryant
v. Commissioner of Correction, 290 Conn. 502, 521, 964
A.2d 1186 (‘‘the decision whether to call a particular
witness falls into the realm of trial strategy, which is
typically left to the discretion of trial counsel’’), cert.
denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130
S. Ct. 259, 175 L. Ed. 2d 242 (2009). For related reasons,
it is not difficult to find cases in which parties have
been precluded from disclosing experts in analogous
situations.4 See Hicks v. State, 287 Conn. 421, 445, 948
A.2d 982 (2008) (in negligence case, trial court did not
abuse its discretion by precluding untimely disclosed
expert because trial already had commenced); Pool v.
Bell, 209 Conn. 536, 541–42, 551 A.2d 1254 (1989) (in
medical malpractice case, trial court did not abuse its
discretion by precluding untimely disclosed expert
because delay was due to improper ‘‘ ‘cat and mouse’ ’’
game and plaintiff would have had little time to discover
and investigate expert’s opinions); see also Gyerko v.
Gyerko, 113 Conn. App. 298, 317, 966 A.2d 306 (2009);
Tornaquindici v. Keggi, 94 Conn. App. 828, 848, 894
A.2d 1019 (2006).
In the present case, the defendant claims that by the
time of the late disclosure, on the basis of the state’s
framing of the case, he already had retained an identifi-
cation expert with the money his wife was able to mus-
ter for his defense. His privately retained counsel repre-
sented that the defendant’s wife was not in a position
to pay for another expert. We do not have a record that
would test whether this representation is accurate but
it is certainly plausible that if the state had timely dis-
closed the DNA expert, the defendant would have allo-
cated his resources differently. Yet, after placing the
defendant in this dilemma, once its motion for untimely
disclosure was granted, the state expressed no interest
in the resolution of the funding issue, stating that that
was between the defendant and the commission. Most
troubling to me about the prosecution’s indifferent posi-
tion is that it’s accurate: one arm of the state (the prose-
cution) having created the problem and another (the
court) having countenanced the state’s late disclosure,
it was not the prosecution’s problem to resolve. Instead,
the court directed the defendant to a third agency of
the state (the commission) for help. But as we will see,
for its own reasons, the commission—predictably and
somewhat understandably—did not embrace its role as
the default fiscal source for such unique situations.
Rather, the commission has taken the position that even
if the defendant in this case was constitutionally entitled
to the funding he sought, the commission was not
required to provide this funding because it is only
required to fund defense costs for its own clients, and
‘‘[t]here is no funding that is appropriated by the legisla-
ture to pay for defense costs of the private bar who
represent they have run out of money to pay for experts,
investigators and other defense costs.’’ The commission
took a similar stance in State v. Wang, 312 Conn. 222,
92 A.3d 220 (2014), arguing that there was ‘‘no statutory
authorization or funding appropriated for [it] to pay for
experts or investigation from its budget for a pro se
litigant who is not its client.’’
Second, I am concerned that aspects of the majority’s
reasoning might be read to unduly limit the trial court’s
and this court’s ability to review and resolve legal claims
that arise when an indigent defendant’s due process
right to present a defense, which entitles him to funding
for expert costs, is intertwined with his right to counsel.
As in Wang, the majority in the present case declares
that the Judicial Branch is not authorized to fund rea-
sonably necessary defense costs. See State v. Wang,
supra, 312 Conn. 256 and n.33. The court in Wang sug-
gested that a court order that funds be made available
in these instances might offend notions of separa-
tion of powers by ‘‘usurp[ing] the power of the legisla-
ture to devise a state budget.’’ Id., 256 n.33. Further
encroachment would occur, the court reasoned, if a
court were itself to make a finding of indigency rather
than the commission in the first instance. Id., 263–64.
Although ultimately the defendant does not ask us to
overrule Wang, I think both propositions might be
somewhat overstated.
I believe, rather, on the basis of those same separation
of powers principles, that it would be reasonable to
conclude that the judiciary—an independent branch of
government—would not be prevented from paying for
such costs itself if a court determined they were consti-
tutionally necessary. True, the Judicial Branch might
not have received a specific appropriation for such
costs. If we listen closely to the position of the commis-
sion, however—both in Wang and in the present case—
neither has the commission. See id., 246 n.24. The com-
mission’s point is that it has projected its own expendi-
tures and been appropriated funds that are based on
the needs of its own clients, not the needs of someone
else’s clients, the needs of those defendants who run out
of money or the needs of those representing themselves.
After this case, the commission might have to ask the
legislature to adjust its budgetary projections on the
basis of additional responsibilities it had not previously
anticipated, as it had to do after Wang.5
At the very least, nothing prevents a court from
declaring what the constitution demands, leaving it to
the legislative and executive branches to determine
which state agency should pay for it. This court has at
times indicated that it does not offend the separation
of powers to issue rulings that would have costs beyond
what has been budgeted, leaving it to the political
branches to determine how to allocate those costs. See
Pellegrino v. O’Neill, 193 Conn. 670, 675–76, 480 A.2d
476 (‘‘[T]he judiciary, as an independent branch of gov-
ernment, has inherent power to direct other governmen-
tal agencies to provide such funds as may be necessary
for the reasonably efficient operation of the courts.
. . . In the absence of a special appropriation the exis-
tence of a law requiring an expenditure to be incurred
is an appropriation of money for that purpose, and the
law imposes on the comptroller the duty of settling and
adjusting demands against the state for such expenses.’’
(Citations omitted; internal quotation marks omitted.)),
cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d
176 (1984); see also Pamela B. v. Ment, 244 Conn. 296,
329, 709 A.2d 1089 (1998) (explaining that court orders
pertaining to judicial resources are not improper merely
because ‘‘there are many competing constraints upon
the resources the judicial department has available with
which to satisfy other constitutional mandates’’). The
question of which agency pays for constitutionally nec-
essary costs should not drive our analysis or prevent
us from deciding a legal issue properly presented. See
In re Taijha H.-B., 333 Conn. 297, 335–36, 216 A.3d 601
(2019); id., 335 (‘‘the benefits of obtaining a second
opinion in the form of some limited judicial review of
counsel’s no merit determination more than offset the
potential costs’’).
Commendably, in my view, Judge Devlin cut to the
chase in State v. Garvins, Superior Court, judicial dis-
trict of Fairfield, Docket No. CR-16-293596-T (Decem-
ber 12, 2017) (65 Conn. L. Rptr. 596), in which the
defendant was represented by pro bono counsel who
requested that the trial court approve funding for a
psychiatric examination after the commission had
denied his request on the ground that the defendant
was being represented by privately retained counsel.
Judge Devlin convened a hearing on the matter at which
counsel for the commission appeared and represented
that although the defendant satisfied the indigency
requirement, he was not eligible for funding for defense
costs by the commission because he had private counsel
and, thus, was not the commission’s client. Id. The court
disagreed. On the basis of a financial affidavit, the court
independently found that the defendant was indigent,
determined that the requested examination was ‘‘rea-
sonably necessary’’ to ‘‘formulate and possibly present
a defense based on mental disease or defect’’; id.; and
determined that it was unconstitutional to force an indi-
gent defendant to choose between his due process right
to present a defense and his right to counsel. Only then
did the court pose the question on the lips of all agencies
involved: ‘‘[W]here should the public funds come from
to pay such expense . . . .’’ Id., 597. Judge Devlin
granted the defendant’s motion for funds, ordered the
defendant to follow the commission’s protocol for
applying for the funds, and ordered the commission not
to unreasonably deny the funds. Id., 596.
I do not believe these determinations of questions
squarely presented offended the separation of powers
doctrine. Following the reasoning of Wang, Judge Dev-
lin answered the legal question at issue between the
defendant and the commission—whether the defendant
was eligible to receive funding from the commission
despite representation by private counsel—and in doing
so vindicated the core missions of the Judicial Branch:
resolving disputes and protecting the rights of litigants.
If the defendant and the trial court in the present
case had followed a similar procedure—if the defendant
had applied for funding with the commission, the com-
mission had denied funding due to an unresolved legal
issue, and the trial court had determined the defendant’s
eligibility for funding in light of his representation by
private counsel—I do not believe that the court would
have acted outside its authority. Even if the trial court
believed it could not have made the indigency determi-
nation, it certainly could have sent the defendant off
to the commission with a ruling that if the defendant
was indigent, then in fact the commission must provide
him with reasonably necessary funds for expert wit-
nesses, irrespective of whether he had private counsel.
Nevertheless, I cannot conclude that the majority
is incorrect that our statutes generally contemplate—
and that it is appropriate policy—that a defendant
should in the first instance proceed through the com-
mission to determine whether he is indigent, regardless
of whether he is represented by a public defender or
an attorney assigned to him by the commission or by
private counsel. See State v. Wang, supra, 312 Conn.
250–51; id., 251 (explaining history and purpose of com-
mission, including that commission was ‘‘charged . . .
with [the broad purpose of] protecting the rights of
indigent defendants’’). But, to the extent that the major-
ity seems to create an exhaustion-like requirement (i.e.,
the defendant must proceed through the commission
for a predicate finding of indigency before turning to
the courts), I have some concerns.
It is unclear to me that there was a defined path as
to how the defendant was supposed to navigate this
situation, which, I again note, was not of his own making
but was a result of the prosecution’s untimely action.
Typically, in cases implicating the exhaustion of admin-
istrative remedies, it is clear both that a party must
exhaust those remedies and how to go about doing
so. Wang itself specifically confined its applicability to
indigent self-represented defendants. Id., 239 n.18. It
did not chart a path forward for how to proceed when
the defendant is represented by pro bono counsel and is
indigent, or is represented by privately retained counsel
but has become indigent. That this is true is evidenced
by the positions taken by the commission in both Wang
and this case.
Although in the present case, the majority, like the
trial court, suggests that the commission might have
permitted the defendant to retain his private counsel
and still access funding for defense costs,6 the commis-
sion, appearing as amicus curiae in this case, threw
cold water on that notion. In fact, the commission’s
internal policy manual states flatly—after Wang—that
it will not provide funding for experts to indigent defen-
dants with private counsel. In its amicus brief to this
court, the commission explains that, because Wang
did not determine whether a defendant represented
by private counsel could obtain state funding for costs,
it has ‘‘adopted a policy that only indigent pro se liti-
gants 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 office
for an eligibility determination and, if the defendant is
indigent, the case will be assigned to an attorney in
the office or to assigned counsel if there is a conflict
of interest.’’
The policy manual does provide a possible work-
around—once private counsel is removed, the commis-
sion may appoint the same previously retained private
counsel as assigned counsel if the best interest of the
client so warrants. Although the commission has
informed this court that this procedure recently has
been followed in at least one other case, it is unclear
whether it routinely allows indigent defendants to keep
their previously retained private counsel. In fact, the
commission’s policy manual suggests that such an
arrangement would be an exceptional circumstance.7
Thus, with the benefit of hindsight and briefing it is
fine to parse the commission’s position and conclude,
as the majority does, that ‘‘we do not understand the
[commission’s] amicus brief to suggest that the relation-
ship with private counsel must be terminated before
the commission conducts an initial investigation of indi-
gency and reviews the application for assistance with
defense costs; rather, we understand that policy to sug-
gest that any defendant seeking public funding for
defense costs must ultimately accept representation
from the public defender or proceed as a self-repre-
sented party prior to receiving such funding once eligi-
bility is determined.’’ (Emphasis omitted.) But the
defendant in the present case had to decide what to do
at a time when his trial was about to begin, and with
at least some uncertainty, given the commission’s artic-
ulated policy and litigation positions, as to whether he
would end up with his constitutionally entitled counsel
of choice: counsel who had prepared his case with him
and already had begun picking a jury before the state’s
late disclosure.8 The majority might not be ‘‘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,’’ but that was not of com-
fort to the defendant at the time. He had no assurances
that he would receive counsel of his choice.
Nevertheless, because the defendant never applied
to the commission in this case, and because we cannot
know if the commission would have required the defen-
dant to dismiss his private counsel to access funding
for expert costs or would have found him indigent,
we cannot reach the defendant’s constitutional claim.
I emphasize, however, that rather than setting up road-
blocks, state actors should be cognizant of their respon-
sibility to provide a clear pathway for indigent defen-
dants to access the resources to which they are
constitutionally entitled. It should be made clear to
indigent defendants that, to access funding for defense
costs, they first must apply with the commission but
that if they are denied funding—for any reason—they
may then seek review by the trial court. Under those
circumstances, the trial court not only has the authority,
but is obligated, to resolve any legal claims that arise,
such as whether a defendant’s right to counsel is vio-
lated by conditioning his constitutional right to funding
for defense costs on representation by a public defender
or an attorney assigned to him by the commission.
Although the commission is the state entity responsible
for determining indigency in the first instance and pro-
viding funding for defense costs, it is imperative that
state actors—including the court and the prosecution—
work in tandem to ensure that indigent defendants are
aware of this procedure, especially when the need for
additional funding is, at least in part, the byproduct of
a state actor’s untimely actions.
1
See, e.g., State v. Webb, 128 Conn. App. 846, 852–83 n.3, 19 A.3d 678
(generally describing national CODIS database), cert. denied, 303 Conn. 907,
32 A.3d 961 (2011).
2
This ‘‘hit’’ occurred three years before the defendant’s arrest. The state
never sought confirmatory evidence from the defendant until jury selection
had begun.
3
On appeal, the defendant does not challenge this ruling.
4
Although the defendant does not challenge the trial court’s decision in
this case to permit the untimely disclosure, and ultimately the DNA expert’s
testimony, the apparent unfairness of the state’s untimely disclosure and
its effect on the defendant should be noted. When the state disclosed this
expert, two jurors had already been chosen and had to be discharged.
Although the trial court made no finding of bad faith, and I attribute none
to the state, surely this taxes the court’s indulgence. Reliance on the stakes
of the case to the public and the victim to justify such late disclosures
promotes neither compliance with the rules, the public’s interest nor the
constitutional interests of the accused.
5
After Wang, the commission in 2015 requested deficiency appropriations
of approximately $6.3 million, caused, in part, by this court’s decision in Wang.
See Conn. Joint Standing Committee Hearings, Appropriations, Pt. 15, p. 6730,
written testimony of Susan O. Storey, Chief Public Defender, Division of Pub-
lic Defender Services, concerning House Bill 6825, April 21, 2015, available at
https://www.cga.ct.gov/2015/appdata/tmy/2015HB-06825-R000421-Agency%
20-%20Office%20of%20the%20Chief%20Public%20Defender%20-%20Susan
%20O.%20Storey-TMY.PDF. The commission represented that it had not bud-
geted for the costs associated with Wang because ‘‘[h]istorically, these expen-
ditures had been court ordered and paid for by the [j]udicial [d]epartment.’’
Id. It was noted, however, that during the 2015 fiscal year, there was only one
indigent self-represented defendant who required expert witness funding.
See Analysis of Finance Advisory Committee Meeting Items, concerning
House Bill No. 6825 (March 5, 2015), available at https://www.cga.ct.gov/
ofa/Documents/year/FAC/2015FAC-20150305_March%202015%20OFA%20
Analysis%20of%20FAC%20Budgetary%20Transfers.pdf.
6
As the majority explains, ‘‘the trial court expressly stated that Kaloidis
would be permitted to continue to represent the defendant during the applica-
tion 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.’’
7
The commission’s policy manual states: ‘‘It is the policy of the [c]ommis-
sion that the Office of Chief Public Defender (OCPD) should not assign a case
to any attorney for compensation as an [a]ssigned [c]ounsel after that attorney
has been previously privately retained in that case, unless the OCPD deter-
mines that such appointment would be in the best interests of the client.’’
(Emphasis added.)
8
I note that this could raise other constitutional concerns, for example,
whether requiring a defendant to abide by the commission’s stated procedure
of requiring a defendant to fire his private counsel and accept representation
by the commission to obtain funding for defense costs unconstitutionally bur-
dens his rights to counsel and to present a defense. In the present case, the
trial court’s suggestions for how the commission might handle the situation
appear merely speculative. However, because the defendant in the present
case did not file an application with the commission, and thus we do not know
if the commission would have required the defendant to fire his private counsel
to obtain funding, the record is inadequate to review this issue.