State v. Wang

312 Conn. 222

92 A.3d 220

STATE of Connecticut

v.Lishan WANG.

No. 19178.

Supreme Court of Connecticut.

Argued Oct. 31, 2013.

Decided June 17, 2014.

S. Max Simmons, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom were Eugene R. Calistro, Jr., senior assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, and Matthew A. Weiner, deputy assistant state's attorney, for the appellee (state).

Adam P. Mauriello, counsel, legal services, with whom was Martin R. Libbin, director of legal services, for the Office of the Chief Court Administrator as amicus curiae.

Martin Zeldis, public defender, with whom were Deborah Del Prete Sullivan, director of legal counsel, and, on the brief, Neal Cone, senior assistant public defender,for the Public Defender Services Commission as amicus curiae.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

ROGERS, C.J.

The primary issue to be resolved in this reservation is whether an indigent defendant who has waived the right to counsel and represents himself in a criminal prosecution is constitutionally entitled to expert or investigative services at public expense that are reasonably necessary to formulate and present a defense. The defendant, Lishan Wang, is charged with, inter alia, murder in violation of General Statutes § 53a–54a (a). While preparing for trial, the state and the defendant entered into a joint stipulation requesting the trial court to reserve four questions of law to this court pursuant to General Statutes § 52–235¹ and Practice Book § 73–1.² The trial court, Clifford, J., granted the joint request of the parties to reserve the following four questions for the advice of this court:

“1. Is an indigent defendant who qualifies for public defender assistance, but who has waived the right to counsel and represents himself with the assistance of standby counsel, constitutionally entitled to public defender or other public funds to secure the assistance of an investigator and/or experts whose services are reasonably necessary to formulate and present a defense?

“2. If the answer to question one (1) above is in the affirmative, does the trial court retain the discretion to grant or deny authorization for public expenditure for any such expert witness [or investigator] fee[s] based upon the trial court's threshold determination [that such services are reasonably necessary to formulate and present a defense]? ³

“3. If the answer to question one (1) above is in the affirmative, should public funds come from the [s]tate of Connecticut's Office of the [Chief] Public Defender?

“4. If the answer to question three (3) above is in the negative, should public funds come from the Connecticut Judicial Branch?” ⁴ (Footnotes added.)

We answer the first reserved question in the affirmative, the second reserved question in the negative, and the third reserved question in the affirmative. Because we answer the third reserved question in the affirmative, we do not answer the fourth reserved question.

The stipulation of the parties accompanying the reserved questions recites the following factual and procedural history.⁵ “The defendant is charged with, among other charges, murder in violation of ... § 53a–54a (a) stemming from an alleged incident that occurred on or about April 26, 2010.... The defendant is currently incarcerated and awaiting trial in the New Haven judicial district. He is being held on a cash only bond of $900,000....

“On or about April 27, 2010, the defendant was found to be indigent and was appointed public defender representation in New Haven.... On May 11, 2011, the defendant filed a motion seeking to represent himself in the criminal proceedings.... On December 14, 2011, the court, Fasano, J., granted the defendant's motion for self-representation. At this hearing, after a formal canvas by the court, the defendant waived his right to appointed counsel and has since represented himself pro se with the assistance of ‘standby’ counsel from the Office of the [Chief] Public Defender....

“The defendant has requested that the trial court, Clifford, J., order funding so that he may retain various experts and an investigator. ⁶ ... The defendant claims that he is constitutionally entitled to funding for ret[ention] of experts as well as an investigator in order to formulate and present a defense to pending charges.... The [p]arties further [stipulate] that the Office of the [Chief] Public Defender for the [s]tate of Connecticut has been asked to, and declined to provide funding in order for the defendant to retain the requested experts and investigator.... The defendant has agreed to the appointment of counsel, Special Public Defender [S.] Max Simmons, for the limited purpose of litigating this reservation, but continues to represent himself in all other aspects of the criminal proceedings, including the investigation into, and presentation of, his defense at trial.” (Citations omitted; footnote added.)

Following the trial court's reservation of the four questions presented in this matter for the consideration and advice of this court, the Office of the Chief Court Administrator (chief court administrator) and the Public Defender Services Commission (commission) sought permission to appear as amicus curiae in this matter. This court granted permission to both parties to appear and argue as amici curiae.

I

We must first determine whether this court has jurisdiction to decide the reserved questions of law, and if so, whether the questions presented are appropriately answered by way of a reservation. Section 52–235(a) confers jurisdiction in this court to consider reserved questions “in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.” If the defendant was to be convicted of murder in violation of § 53a–54a, a class A felony,⁷ he could lawfully appeal to this court under General Statutes § 51–199(b)(3).⁸ Accordingly, this court has jurisdiction to decide the questions in this reservation.

Notwithstanding this court's jurisdiction, we must determine whether we should answer the reserved questions in accordance with the standards articulated in Practice Book § 73–1. Section 73–1(f) provides that “[t]he court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.” The parties' joint stipulation and representations at oral argument before this court persuade us that the reserved questions at bar meet the settled criteria under our rules of practice.

The first reserved question asks whether an indigent defendant who has waived his right to counsel is constitutionally entitled to public funds to secure expert or investigative services that are reasonably necessary to formulate and present a defense. We conclude that this question is reasonably certain to enter into the decision in the present case and that its present resolution would further judicial economy. The defendant, a self-represented indigent party, maintains that he will require expert and investigative services to mount his defense to the pending charges. In his motions seeking court-ordered appointment of experts and investigators; see footnote 6 of this opinion; the defendant extensively documented his alleged history of mental illness and his possible intention to raise a defense of mental disease or defect.⁹ At oral argument before this court, moreover, the state insisted that the defendant would require, at the very least, a mental health expert in order to respond to the state's request to provide notice of a defense of mental disease or defect.¹⁰ Because this need for an expert is undisputed, we conclude that the first reserved question is properly before this court at this stage of the proceedings. Finally, our affirmative answer to the first reserved question necessarily renders the remaining reserved questions ripe for our consideration.

II

We now turn to the first question in this reservation. Whether an indigent self-represented defendant is constitutionally entitled to expert or investigative services at public expense that are reasonably necessary to formulate and present a defense is a question of first impression for this court. The defendant claims that he has a due process right to access the basic tools of an adequate defense, including the reasonably necessary assistance of investigators and experts. The defendant further asserts that his due process right to a fair opportunity to present his defense pursuant to the fourteenth amendment to the federal constitution does not depend upon the nature of his legal representation pursuant to the sixth amendment to the federal constitution. Thus, while the defendant acknowledges that had he not waived his right to counsel and elected to represent himself, he would have had access to the full panoply of resources attendant to public defender representation,¹¹ he argues that he cannot be compelled to accept public defender representation, and to forgo the right to represent himself, in order to vindicate his right to access the basic tools of an adequate defense.

The state has not taken a position on the reserved questions other than to clarify its institutional interest in assuring the integrity of the defendant's criminal trial. The state agrees with the defendant, however, that the due process principle of fundamental fairness requires that an indigent defendant be afforded a fair opportunity to present his defense. For the reasons that follow, we conclude that an indigent self-represented criminal defendant has a fourteenth amendment due process right to publically funded...