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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 postidentification 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 identifications. 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, accordingly, 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 ancillary defense costs for indigent defendants, and, consistent with the

statute (§ 51-297) governing the determination of indigency in connection 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 determination 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 represented 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 applicable 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 professed 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 overwhelm the jury’s capacity to fairly evaluate the evidence, and also reasonably 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 challenge such confidence statements by presenting expert testimony on

the reliability of eyewitness testimony, as the defendant did in the present 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 attorney, 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 Waterbury, which runs parallel to Wood Street, and the backyards of the homes on the two streets adjoin. At approximately 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 approximately twelve to twenty feet away from her. The defendant 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 continued 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 Coleman’s driveway, the defendant tapped her on the shoulder 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 underwent surgery for her injuries.

After the police had secured the scene, officers recovered a red hooded sweatshirt from the side of an abandoned 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 bloodstained box cutter in the backyard of another home on

Wood Street adjacent to Coleman’s home.

Although the initial investigation did not initially produce 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 photographic array procedure. The victim 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 Waterbury

. . . .’’ Afterward, the victim was interviewed by Detective John Pesce, and she told him that she was in fact

‘‘absolutely certain’’ with respect to her prior identification. 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 evidence 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 sentenced the defendant to a

total effective sentence of twenty years of incarceration,

with a mandatory minimum of five years of incarcer-
ation, 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 relevant facts and procedural history when necessary.

I

The defendant first claims that the trial court abused

its discretion and violated his federal and state constitutional rights when it denied his motion for public

funds to obtain a DNA expert to assist in his defense in

challenging the state’s DNA mixture results. The record

reveals the following additional relevant facts and procedural 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 analysis

and moved for permission to obtain a DNA sample from

the defendant via a buccal swab in order to compare 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 constituted an unfair surprise and was prejudicial. On December 12, 2016, the trial court overruled the objection 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 evidence 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 memoran-
dum 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 defender’s office without necessarily changing defense attorneys.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 defendant 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 perform 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 properly denied the

defendant’s motion because it lacked discretion altogether to consider a request to fund ancillary 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, Lishan 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 Judicial 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 representation, but he

subsequently filed a motion to represent 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 investigator 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 decision in Ake v. Oklahoma, supra, 470 U.S. 68, we concluded that ‘‘an indigent self-represented criminal defendant has a fourteenth amendment due process right to

publically 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.’’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 counsel 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 indigent defendant . . . is entitled both to the constitutional right to counsel and the

constitutional right to be provided with the basic tools

of an adequate defense.’’ (Emphasis in original; internal

quotation marks omitted.) Id., 239.

Considering next which governmental entity is obligated 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 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. In concluding that the commission was obligated to pay the ancillary 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

(discussing 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 constitutional rights, which effectively asks us to decide the

issue we left unaddressed in Wang. At the outset, however, 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. Oklahoma, 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 significant part on the [f]ourteenth [a]mendment’s due process 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 representation, we must consider the existence of the threshold 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 accompanying 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 mistake has been committed. . . .

‘‘It is the duty of the state to provide adequate means

to [ensure] that no indigent accused lacks full opportunity for his defense . . . . The right to legal and financial 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 instructive 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 chapter, 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 quotation 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 representation 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 defender’s office, insofar as the commission is the entity statutorily 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 omitted)). 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 defendants] was the creation of [the commission] to administer the public defender system in lieu of the judges

of the Superior Court, who previously had been responsible 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 accomplished through [the Division of Public Defender Services] . . . which has promulgated guidelines that are

instructive as to the threshold indigency determination.’’

(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 decision 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 indigent 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 defendant 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 defendant 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 representation 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 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.’’ 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 conducts 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 ultimately 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 commission’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 constitutional issue[s], as the defendant has failed to establish

the threshold requirement of his indigency’’). Accordingly, 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 constitutional 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 procedural 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 investigation. 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 Waterbury . . . .’’

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. . . .’’ (Emphasis 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 defendant’s motion in limine regarding the victim’s confidence 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 present 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 ‘‘absolutely 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 identification.

The defendant then presented testimony from Kevin

Colwell, a professor of psychology at Southern Connecticut 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 statements 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 credibility of the testimony as it relates to the issue of identification, keep in mind that it is not sufficient that the witness

be free from doubt as to the correctness of the identification of the defendant; rather, you must be satisfied

beyond a reasonable doubt of the accuracy of the identification 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 present 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 discretion because the victim’s postidentification confidence statements were irrelevant, more prejudicial than

probative, self-bolstering and invaded the province of

the jury. The defendant argues that the victim’s postidentification confidence statements were not relevant because, ‘‘[i]f there is no scientific support for a

relationship 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 procedure 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 tendency 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 outof-court and a subsequent in-court identification of him

by an eyewitness, claiming that the out-of-court identification resulted from an unnecessarily suggestive procedure 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 constitutional law, that, when an eyewitness identification

allegedly results from an unnecessarily suggestive procedure, ‘‘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 reliable in light of all relevant system and estimator variables. . . . 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 preceded by an unnecessarily suggestive procedure, a
defendant is entitled to present expert testimony on the

reliability of eyewitness testimony. . . . [S]uch testimony 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. Henderson, 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 recognizes 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 accordance with our [decision] in Guilbert.’’ (Citations omitted.) 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 procedure, 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 identification.

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 conviction 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 violates 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 reliability of identifications that are not tainted by improper procedure]

go to the weight rather than to the admissibility of the

evidence’). Accordingly, like the court in Henderson,

we conclude that a pretrial hearing ordinarily 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 evidence, 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 statements and reliability and accuracy allowed for the

presentation of current scientific evidence on the relationship between confidence and accuracy, while also

leaving to the jury the ultimate decision of which evidence 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 tosuppress the identification itself.InHarris,

we noted that, ‘‘[i]n the absence of evidence of a suggestive procedure or other extraordinary circumstances

. . . evidence relating solely to estimator factors that

affect the reliability of the identification goes to the

weight, not the admissibility, of the identification.’’

(Emphasis added.) Id., 132. Among those estimator factors 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 confidence 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 reliability 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 determin-
ing whether identification made during unnecessarily

suggestive 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

identification 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 photograph 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 demonstrateher levelof confidenceat thetime 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 prompting by the police.

The defendant also claims that the victim’s postidentification confidence statements regarding her identification 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 considerations of undue delay, waste of time or needless presentation 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 emotions 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 conclude that the confidence statements were relevant or

more than ‘‘minimally’’ probative. Under these circumstances, 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’ testimony 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 opinion 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 confidence statements did not invade the province of the jury.

Finally, we address the suggestion of the amicus

curiae, The Innocence Project, that we adopt evidentiary

rules establishing that testimony concerning eyewitness

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 postidentification 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 overturned by forensic DNA tests,’’ and ‘‘three fourths of

these convictions of innocent persons involved mistaken 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 determinations regarding the accuracy of an eyewitness identification’’ (internal quotation marks omitted)). The Innocence 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, confidence statements beyond those captured at the initial

identification procedure are more prejudicial than probative 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 confidence in his or her identification and the accuracy of

that identification, especially given our recent reaffirmation 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 evidence of a suggestive procedure or other extraordinary

circumstances . . . evidence relating solely to estimator factors that affect the reliability of the identification

goes to the weight, not the admissibility, of the identification’’). In Harris, we concluded that, ‘‘as an evidentiary matter, and even in cases in which an identification was not preceded by an unnecessarily suggestive

procedure, a defendant is entitled to present expert

testimony on the reliability of eyewitness testimony.’’

Id., 118. Such expert testimony may properly challenge the reliability 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 eyewitness 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 credibility of the testimony as it relates

to the issue of identification, keep in mind that it is not

sufficient that the witness be free from doubt as to the

correctness of the identification of the defendant; rather,

you must be satisfied beyond a reasonable doubt of the

accuracy of the identification 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

enumerated in Guilbert, Dickson, and Harris, which

allows for the admission of both postidentification confidence statements and expert testimony to challenge

the reliability and accuracy of those statements. Accordingly, we conclude that the trial court did not abuse its

discretion 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 represented 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 representation 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 quotation 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 legislature included reasonably necessary ‘costs of defense’ within the commission’s budget in § 51-292, the legislature did not similarly include such

expenses within the budget of the Judicial Branch. Thus, ordering the Judicial 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-represented 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 present 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 represent 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 indigence 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] inadequate 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 commission 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 Investigation] 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 convicted 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 photographic array. Additionally, the parties agree that the victim’s written statement 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 postidentification information about the event or the identification; and (8) the accuracy 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 crossexamination is a ‘‘sufficiently effective tool’’ to test the reliability of a witness’

in-court statement in which the witness expresses a higher degree of confidence than in that same witness’ prior out-of-court statement. We observed

that a defendant ‘‘can present expert testimony that there is a weak correlation 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 . . . .’’ (Internal quotation marks omitted.) Id. If cross-examination is a sufficiently effective 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 statement, 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, bolstering, 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 proposition that witness confidence is susceptible to, and can be inflated by, suggestion and postconfirmation feedback. We observe that, in the present case,

there is nothing in the record to suggest that the victim’s confidence statements 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 victim’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 confidence statements made at the time of an initial viewing are more reliable,

that there does not appear to be a relationship between confidence statements that are made subsequent to an initial viewing and reliability, and

that subsequent confidence statements are not correlated with reliability

or accuracy.