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State v. Britto
STATE OF CONNECTICUT v. DAVID BRITTO
(AC 47223)
Elgo, Wilson and Keller, Js.
Syllabus
Convicted of sexual assault in the first degree and other crimes, the defendant appealed to this court. He claimed, inter alia, that the trial court failed
to adequately make him aware of the dangers and disadvantages of self-representation when canvassing him to determine if his waiver of his right
to counsel was made knowingly, voluntarily and intelligently because the
court did not explain to him the limited role of standby counsel as set forth
in the rule of practice (§ 44-5). Held:
The trial court’s canvass of the defendant did not establish that he made a
knowing and intelligent waiver of his right to counsel, as the court provided
him with no information from which he could differentiate between the
limited role of standby counsel and that of full counsel, and, without such an
explanation, this court could not conclude that the defendant was adequately
aware of the dangers and disadvantages of self-representation; accordingly,
the judgment was reversed and the case was remanded for a new trial.
This court, although it declined to address the defendant’s claim that the
trial court violated his due process rights, including his right to present a
defense, when it improperly denied him a continuance to obtain authorization from the Office of the Chief Public Defender to obtain a DNA expert,
noted its concern with the trial court’s determination that the defendant
himself was solely responsible for obtaining such authorization.
Argued June 16—officially released October 28, 2025
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, unlawful
restraint in the first degree and assault in the third
degree, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before
Alander, J.; thereafter, the court denied the defendant’s
motion for a continuance; verdict of guilty; subsequently, the court, Brown, J., rendered judgment in
accordance with the verdict, from which the defendant
appealed to this court. Reversed; new trial.
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State v. Britto
John R. Weikart, assigned counsel, with whom, on
the brief, was Emily Graner Sexton, assigned counsel,
for the appellant (defendant).
Rebecca R. Zeuschner, deputy assistant state’s attorney, with whom, on the brief, were John P. Doyle, state’s
attorney, and Stacey M. Miranda, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, David Britto, appeals from
the judgment of conviction, rendered after a jury trial, of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1), unlawful restraint in the first
degree in violation of General Statutes § 53a-95 (a),
and assault in the third degree in violation of General
Statutes § 53a-61 (a) (1). On appeal, the defendant
claims that the trial court (1) inadequately canvassed
him to determine whether his waiver of his right to
counsel was knowing, voluntary and intelligent, and (2)
violated his due process rights, including his right to
present a defense, when it denied his request for a
continuance to obtain a DNA expert. We agree with the
defendant’s first claim and, accordingly, reverse the
judgment of the trial court.
The jury reasonably could have found the following
facts. During the early morning hours of July 19, 2018,
the complainant, C,1 was walking home from a party
in New Haven. A man, whom the complainant did not
know, offered her a ride. The complainant, who was
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the complainant. See General
Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
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State v. Britto
‘‘tipsy’’ at the time, got in the car. She gave the man
2
directions toward her house.
After approximately twenty to thirty minutes, the
complainant realized that the drive was taking longer
than it should have taken. While they were at a stop
sign, the complainant tried to open the passenger door
to get out, but the door was locked. The man continued
driving, and the complainant asked him to let her out
of the car. The man parked on a residential street and
told the complainant: ‘‘[Y]ou’re gonna give me that
pussy.’’ The complainant responded: ‘‘[N]o, please let
me out of the car.’’
A physical altercation ensued between the man and
the complainant. The man punched the complainant in
the forehead. The complainant’s arms were scratched
and her shirt was ripped. The man started to pull the
complainant’s pants down, and the complainant, who
believed the man was going to kill her, pulled her pants
down the rest of the way. The complainant stated, ‘‘ ‘no,’
over and over and over . . . .’’ The man then penetrated her vaginally with his penis.
The man subsequently drove to a different location
and let the complainant out of his car. A good Samaritan
offered to help the complainant and drove her to Yale
New Haven Hospital. At the hospital, the complainant
reported that she had been sexually assaulted. A sexual
assault kit was administered, and an officer from the
New Haven Police Department met with the complainant.
The sexual assault kit was processed by DNA analysts
at Bode Technology, a private laboratory located in
Virginia that had a contract with the state forensic laboratory. Male DNA was discovered on the vaginal swabs
2
At trial, the complainant explained that she ‘‘had a couple of drinks’’
and ‘‘smoked some weed’’ at the party.
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State v. Britto
in the complainant’s sexual assault kit. In addition, male
DNA was discovered on a dried secretion swab that
had been taken from one of the complainant’s arms
and hands, and a DNA profile was generated from that
evidence.
In April, 2019, the complainant identified the defendant as the perpetrator from a photographic array
shown to her by the police. The police subsequently
obtained a search warrant to collect DNA from the
defendant via a buccal swab. A forensic science examiner from the state forensic laboratory compared the
DNA profile generated from the defendant’s buccal
swab with DNA profiles from the complainant’s sexual
assault kit. The DNA profiles from the vaginal swabs
and dried secretion swab matched the DNA profile of
the defendant.3 The defendant was arrested in October,
2021, and charged with sexual assault in the first degree,
unlawful restraint in the first degree, and assault in the
third degree.
At a pretrial proceeding on April 10, 2023, the defendant invoked his right to self-representation. After conducting a canvass, the court, Harmon, J., found that
the defendant knowingly, intelligently, and voluntarily
waived his right to counsel. The court appointed Attorney Paul V. Carty to serve as the defendant’s standby
counsel, and the defendant proceeded to trial in a self-represented capacity.
3
At trial, the forensic science examiner who compared the profiles testified that the expected frequency of individuals who could be contributors
to the DNA profile from the dried secretion swab was less than one in seven
billion in the general population. In addition, the expected frequency of
individuals who could be the source of the DNA profile from the epithelial
fraction of the vaginal swab was less than one in 2000 in the general male
population, and the expected frequency of individuals who could be the
source of the DNA profile from the sperm rich fraction of the vaginal swab
was less than one in 820 in the general male population.
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State v. Britto
The trial began on June 20, 2023. The state presented
the testimony of the complainant; the nurses who provided treatment to the complainant at the hospital and
administered the sexual assault kit; the responding
police officer who spoke to the complainant at the
hospital on the date of the incident; and the police
officer who conducted the photographic array procedure. The state also presented numerous witnesses
regarding the DNA evidence, including several DNA
analysts from Bode Technology who had processed the
complainant’s sexual assault kit; the detectives from
the New Haven Police Department who were involved
in obtaining the defendant’s buccal swab and transporting it to the state forensic laboratory for DNA testing; and the forensic science examiners from the state
forensic laboratory who generated the defendant’s DNA
profile from his buccal swab and compared that profile
to the DNA profiles generated from the sexual
assault kit.
The defendant did not present any witnesses. The
defendant had requested a continuance during trial in
order to present a DNA expert, but the court, Alander,
J., denied that request on the ground that the defendant
had failed to file an authorization request with the Office
of the Chief Public Defender (OCPD) to obtain funding
for an expert, and it was too late for the defendant to
make that request given that the jury already had heard
two days of evidence.
The trial court held a hearing outside the presence
of the jury on June 22, 2023, the third day of trial, prior
to denying the defendant’s request for a continuance.
The court heard about the defendant’s efforts to obtain
funding for a DNA expert from the defendant himself;
Carty, the defendant’s standby counsel; Attorney John
R. Day, the Deputy Chief Public Defender for the OCPD
who was involved in the process of providing funds for
expert services; and Joyce Bellamy, the director of DNA
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State v. Britto
Genetics Lab in Woodbridge, with whom the defendant
had been in contact about providing expert services.4
Day explained that, in March, 2023, the OCPD had determined that a DNA expert was reasonably necessary to
the defendant’s defense and approved funding pursuant
to a request submitted by Attorney Jamie E. Alosi, who
represented the defendant before he invoked his right
to self-representation. Pursuant to that approval, the
defendant was authorized to retain a certain DNA
expert, who was not affiliated with DNA Genetics Lab,
for a total of $4000, at a rate of $250 per hour for sixteen
hours. In May, 2023, after the defendant became self-represented, Carty obtained an authorization for DNA
Genetics Lab to perform certain services on the defendant’s behalf at a flat rate of $450.
Day received an invoice directly from DNA Genetics
Lab for services totaling $4150, which included work
performed at a rate of $350 per hour.5 The defendant
had not received an authorization to incur the expenses
reflected on that invoice, and Day explained that any
expenses billed at a rate higher than $300 per hour
had to be approved by the Public Defender Services
Commission (commission), which would not meet until
June 27, 2023.6 Day emailed Carty about the invoice
on June 6, 2023, and arranged a phone call with the
defendant and Carty on June 7, 2023. During the phone
call, Day outlined the procedure for hiring an expert
4
The trial court began to address the defendant’s request for a continuance
on June 21, 2023, the second day of trial but continued the matter in order
for Day and Bellamy to appear in court.
5
Bellamy testified that DNA Genetics Lab initially generated a DNA profile
from the defendant’s buccal swab for the flat rate fee of $450. After that,
however, the defendant sought additional services, including DNA profile
comparison, case review and consultation, and expert testimony.
6
By the time of trial, DNA Genetics Lab had submitted a new invoice to
Day that reflected services performed at a rate of $300 per hour but which
totaled $8614.25. Day explained that services exceeding $6500 from a single
vendor in a sex assault case also required approval from the commission.
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State v. Britto
through the OCPD and told the defendant and Carty
that they needed to submit a new authorization request
for the increased fees. Day explained to the court that
he typically asks standby counsel to submit requests
on behalf of self-represented defendants, as assigned
counsel has the ability to submit requests that are processed through the electronic database that manages
expense requests.
Bellamy, from DNA Genetics Lab, explained that she
had been in contact with the defendant since April,
2023. She spoke to both the defendant and Day about
the issues regarding the invoice. After speaking with
Day, Bellamy was under the impression that the defendant did not understand that there was an additional
process, apart from obtaining the invoice, that had to be
completed for authorization. In addition, she explained
that, even if the laboratory was authorized to provide
the services requested by the defendant, it would take
approximately two more weeks to complete.
Carty acknowledged that he was aware that the
defendant was required to submit an authorization
request and that they ‘‘were kind of in a bind’’ because
they were ‘‘running out of time to get it done . . . .’’
Nevertheless, Carty viewed his role as ‘‘only tangential,
sort of like a pass-through . . . to the [OCPD]. Whatever was submitted to me I would pass through them.
. . . But in terms of making arrangements . . . I felt
as standby counsel that that’s kind of beyond what my
role was.’’
The defendant, however, believed that Carty, as his
standby counsel, would keep him informed of what was
going on. In addition, the defendant believed that he
was ‘‘out of it’’ at that time, as Day and Bellamy were
‘‘in the process of trying to iron out’’ the issues related
to the invoice. Ultimately, although Carty and Day were
aware of the defendant’s attempts to obtain funding for
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State v. Britto
a DNA expert, the trial court faulted the defendant for
failing to file an authorization request7 and for failing
to request a continuance prior to June 20, 2023, the
first day of trial.8
The jury subsequently found the defendant guilty of
all charges. Thereafter, the trial court imposed a total
effective sentence of twenty years of incarceration, execution suspended after sixteen years, followed by
twenty-five years of probation. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that the trial court inadequately canvassed him to determine whether his waiver
of his right to counsel was knowing, voluntary, and
intelligent. Specifically, the defendant contends that the
court, inter alia, failed to adequately make him aware
of the dangers and disadvantages of self-representation
7
Specifically, the trial court told the defendant: ‘‘[Y]ou were in control
of getting [a] DNA expert’’ and ‘‘you were specifically told by [Day] in a
phone conversation that you needed to file that authorization. You could
have done it, you could have asked [Carty] to do it, you didn’t.’’ In addition,
after the court ruled and the defendant asked whether trial was going to
continue without his DNA expert, the court told the defendant: ‘‘Correct.
. . . And . . . that’s on you.’’
8
Our review of the record reflects that the defendant raised the issue of
funding for his DNA expert before trial started, on June 12, 2023, the first
day of jury selection. Specifically, the defendant stated: ‘‘[T]here’s another
expert witness that I’m waiting for now because it has something to do with
a DNA expert. Now, as we speak, [Day] . . . he’s working with Genetics
Lab out of Woodbridge, Connecticut, and they supposed to have some type
of payment being made so that expert witness can be acknowledged. So,
what I’m saying is . . . I might have to file a motion for extended time
because I got one more name, and he’s the most important one.’’
Although the trial court recognized that the defendant had raised this
issue during jury selection, it emphasized that the defendant did not request
a continuance prior to June 20, 2023. On June 20, immediately before trial
commenced, the defendant told the court that the funding for his DNA
expert still had not been approved and that Day was in the process of getting
information from DNA Genetics Lab for the approval.
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State v. Britto
because it did not explain the limited role of standby
counsel.9 We agree.
The following additional facts and procedural history
are relevant to the defendant’s claim. Throughout the
course of the pretrial proceedings, the defendant had
been represented by several different attorneys. On
April 4, 2023, Alosi, who represented the defendant at
that time, filed a motion to withdraw her appearance.
The court, Harmon, J., addressed Alosi’s motion at a
hearing on April 10, 2023. The court told the defendant:
‘‘[I]f we release . . . [Alosi] from your case. you’re
gonna need another attorney.’’ The defendant
responded: ‘‘I’d like to represent myself, Your Honor.’’
The court told the defendant that it would need to
canvass him to determine whether he could represent
himself. Before the court conducted its formal canvass,
the following colloquy took place:
‘‘The Court: You have to understand . . . [i]f the
court were to grant a motion for you to represent yourself, some of those things you’re talking about suddenly
become your responsibility; a DNA expert becomes
your responsibility to get in this case, the investigation
on it all becomes your responsibility in terms of that,
and you’re the one [who] would have to facilitate and
9
The defendant also contends that the trial court (1) made certain statements indicating that it ‘‘presume[d] self-representation’’ rather than adhering to the presumption against the waiver of the right to counsel, (2) failed
to adequately investigate whether the defendant wanted to represent himself
given the discrepancies in the defendant’s answers about whether he wanted
to waive the right to counsel, (3) failed to determine whether the defendant
truly wanted to represent himself or whether he instead sought self-representation out of frustration from the withdrawal of several attorneys who had
been appointed to represent him, and (4) made statements that ‘‘tended to
pressure the defendant toward self-representation.’’ In light of our conclusion that the canvass was constitutionally infirm insofar as the court inadequately apprised the defendant of the dangers and disadvantages of self-representation by failing to explain the limited role of standby counsel, we
need not address these additional claims. See State v. Diaz, 274 Conn. 818,
828 n.11, 878 A.2d 1078 (2005).
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State v. Britto
make those things happen. . . . If you represent yourself, you basically are the attorney. You know, you’re
your own attorney and . . . you’re gonna be treated
just like any other attorney by the court, not by me,
but by your trial judge, who’s going to say, hey, as far
as I’m concerned, you’re an attorney, you decide to
represent yourself, you’re not gonna get any special
favors . . . they can’t help you throughout the trial,
they can’t try and push things your way, or, if you
miss something, they can’t tell you, hey, you missed
something; they’re not able to do that. So, a lot of times,
that’s why, when people say they’re going to represent
themselves, we end up having what’s called some type
of standby counsel, or somebody there with them to
assist them in some manner. Even though they may
be doing the case themselves, they still have someone
assisting them there who has a more in-depth knowledge of the law itself, okay.
‘‘The Defendant: Um-hm. I understand.
‘‘The Court: Okay. So, that’s where [we] are with that.
So, I know that . . . you’ve had a number of attorneys,
okay, and none of them have worked out. . . . My
question is, when you’re asking to represent yourself,
is that because none of these attorneys have worked
out, or is it because you actually want to represent
yourself and you feel that you are the best person to
represent yourself?
‘‘The Defendant: Is that a question?
‘‘The Court: That’s a question. Yes.
‘‘The Defendant: Okay. I know my case. I know what’s
wrong. I know what’s right. I know what didn’t happen.
I know what did happen. . . .
‘‘The Court: Do you feel that you know the law?
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State v. Britto
‘‘The Defendant: I can get help. There’s a law library
upstairs, and there’s also people . . . in the community
that I know that [have been] pulling my coat on certain
things, such as this DNA issue and likewise and so forth
and so on. So, I believe in myself, and I know that if
I’m gonna be put away, okay, I’m gonna put myself
away. I don’t need nobody help putting me away, okay.
And, as far as me finding out about things, about my
case and everything, I know everything, okay, because,
like I said, I know my case better than anybody, okay.’’
During its formal canvass, the trial court advised the
defendant regarding the nature of the charges against
him, the maximum penalties associated with those
charges, and his right to the assistance of counsel,
including the appointment of counsel. With respect to
the dangers and disadvantages of self-representation,
the following colloquy took place:
‘‘The Court: You understand if you had an attorney
representing you, the attorney would be obligated to
investigate the charges against you, advise you of the
strengths and weaknesses of the state’s case against
you, and help you decide whether to accept a plea
agreement with the state or plead not guilty and go to
trial. You understand that?
‘‘The Defendant: Yes.
‘‘The Court: Okay. Do you feel that those are things
that you can do yourself without the assistance of an
attorney?
‘‘The Defendant: Yes.
…
‘‘The Court: . . . [Y]ou know that, at the trial, the
judge is not going to be able to give you any legal advice.
You understand that?
‘‘The Defendant: Yes.
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State v. Britto
‘‘The Court: You understand that the judge must
remain impartial and cannot give you procedural or
substantive advice. You understand that?
‘‘The Defendant: Yes.
‘‘The Court: So, you’ll have to educate yourself on
the procedures on what’s going to happen during the
courtroom, what happens during jury selection; anything of that nature, that’s going to become your responsib[ility]. You understand that?
‘‘The Defendant: Say that one more time.
‘‘The Court: Anything that happens during jury selection or with any type of pretrial motions, that becomes
your responsibility, you understand that? When you’re
representing yourself, you’re the attorney.
‘‘The Defendant: So, anything in regard to the trial
itself?
‘‘The Court: That’s correct.
‘‘The Defendant: Okay. Yep.
…
‘‘The Court: As far as any experience with court proceedings, have you seen court proceedings before?
‘‘The Defendant: Yes.
‘‘The Court: And you’ve come here and participated
in your court proceedings; is that correct?
‘‘The Defendant: Yes.
‘‘The Court: Knowing all that I have explained to
you, including the charges against you, the possible
punishment for those charges, the dangers and disadvantages of representing yourself, do you wish to represent yourself and waive your right to counsel at this
time?
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State v. Britto
‘‘The Defendant: No.
‘‘The Court: Okay. Then you don’t want to represent
yourself?
‘‘The Defendant: No . . . I don’t want to waive the
right to counsel. . . . I mean, it’s obvious that I don’t
know the law, I’m not a lawyer, but I do know enough
facts about my case where I believe that I could explain
it to the fullest where I can, you know . . . get a not
guilty plea.
‘‘The Court: . . . I guess my question is, though, but
when you’re saying that, Mr. Britto . . . when you’re
giving up your right to have an attorney represent you
. . . that’s where you’re saying you wish to represent
yourself . . . .
‘‘The Defendant: Right.
‘‘The Court: And you’re waiving your right to have
an attorney represent you.
‘‘The Defendant: Right.
‘‘The Court: So, that’s what I’m asking you. Are you
waiving your right, giving up the right to have an attorney represent you and representing yourself?
‘‘The Defendant: . . . As I just answered you, I’m
going to need some help, okay, along the way with
things that I may not be familiar with because I’m not
a lawyer.
‘‘The Court: I can appoint . . . . So, it sound[s] like
you’re gonna need standby counsel . . . .
‘‘The Defendant: Yeah. Yes.
‘‘The Court: Okay. . . . So, what we’re gonna do is,
the court, at this time, we’re gonna . . . [y]ou’re waiving your right to have counsel represent you; is that
correct?
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State v. Britto
‘‘The Defendant: Yes.
‘‘The Court: Okay. Has anyone threatened you or
forced you to do this?
‘‘The Defendant: Now, wait a minute. Wait a minute.
You just said something about I’m going to need standby
counsel, then you just asked me . . . .
‘‘The Court: I’m getting to that part.
‘‘The Defendant: . . . then you just asked me . . .
‘‘The Court: I’m gonna get to that . . . I’m going to
get to that part.
‘‘The Defendant: Okay. Okay. Yep.
‘‘The Court: Okay. So, has anyone threatened you or
forced you to make this decision to represent yourself
today with standby counsel?
‘‘The Defendant: No.
‘‘The Court: Okay. So, what I’m going to do today is,
I’m going to . . . based on your appearance in court
today, your responses to my questions, I’m going to
find that you’re competent to proceed with standby
counsel on your own at this time, and that you knowingly, intelligently, and voluntarily . . . have waived
your right to counsel, but I am appointing standby counsel, okay.’’ The court subsequently appointed Carty to
serve as the defendant’s standby counsel.
The following legal principles guide our analysis of
the defendant’s claim. ‘‘It is well established that [w]e
review the trial court’s determination with respect to
whether the defendant knowingly and voluntarily
elected to proceed pro se for abuse of discretion. . . .
‘‘The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal
defendant has a constitutionally protected interest in
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State v. Britto
each, but [because] the two rights cannot be exercised
simultaneously, a defendant must choose between
them. When the right to have competent counsel ceases
as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation
by knowingly and intelligently waiving his right to representation by counsel. . . .
‘‘[A] defendant need not himself have the skill and
experience of a lawyer in order competently and intelligently to choose self-representation . . . . Rather, a
record that affirmatively shows that [he] was literate,
competent, and understanding, and that he was voluntarily exercising his informed free will sufficiently supports a waiver. . . . The nature of the inquiry that must
be conducted to substantiate an effective waiver has
been explicitly articulated in decisions by various federal courts of appeals. . . .
‘‘Practice Book § [44-3]10 was adopted in order to
implement the right of a defendant in a criminal case
to act as his own attorney . . . . Before a trial court
may accept a defendant’s waiver of counsel, it must
conduct an inquiry in accordance with § [44-3], in order
to satisfy itself that the defendant’s decision to waive
counsel is knowingly and intelligently made. . . .
10
Practice Book § 44-3 provides: ‘‘A defendant shall be permitted to waive
the right to counsel and shall be permitted to represent himself or herself
at any stage of the proceedings, either prior to or following the appointment
of counsel. A waiver will be accepted only after the judicial authority makes
a thorough inquiry and is satisfied that the defendant:
‘‘(1) Has been clearly advised of the right to the assistance of counsel,
including the right to the assignment of counsel when so entitled;
‘‘(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
‘‘(3) Comprehends the nature of the charges and proceedings, the range
of permissible punishments, and any additional facts essential to a broad
understanding of the case; and
‘‘(4) Has been made aware of the dangers and disadvantages of self-representation.’’
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Because the § [44-3] inquiry simultaneously triggers the
constitutional right of a defendant to represent himself
and enables the waiver of the constitutional right of a
defendant to counsel, the provisions of § [44-3] cannot
be construed to require anything more than is constitutionally mandated. . . .
‘‘The multifactor analysis of [Practice Book § 44-3],
therefore, is designed to assist the court in answering
two fundamental questions: first, whether a criminal
defendant is minimally competent to make the decision
to waive counsel, and second, whether the defendant
actually made that decision in a knowing, voluntary and
intelligent fashion. . . . As the United States Supreme
Court [has] recognized, these two questions are separate, with the former logically antecedent to the latter.
. . . Inasmuch as the defendant’s competence is uncontested, we proceed to whether the trial court abused
its discretion in concluding that the defendant made the
waiver decision in a knowing, voluntary, and intelligent
fashion.’’ (Citations omitted; footnote added; internal
quotation marks omitted.) State v. Joseph A., 336 Conn.
247, 254–56,
245 A.3d 785 (2020).
‘‘[I]n order [to] competently and intelligently . . .
choose self-representation, [a defendant] should be
made aware of the dangers and disadvantages of self-representation, so that the record will establish that he
knows what he is doing and his choice is made with
eyes open.’’ (Internal quotation marks omitted.) State
v. Williams, 206 Conn. App. 539, 552,
260 A.3d 485, cert.
denied, 339 Conn. 910,
261 A.3d 744 (2021). In State v.
Collins, 299 Conn. 567,
10 A.3d 1005, cert. denied,
565
U.S. 908,
132 S. Ct. 314,
181 L. Ed. 2d 193 (2011), which
involved a ‘‘model canvass,’’ the trial court ‘‘satisfied
its critical responsibility of cautioning the defendant
about the potentially disastrous consequences of electing to proceed pro se’’ by urging him to exercise his
right to assigned counsel in light of the dangers of
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State v. Britto
self-representation, including cautions that he would
be held responsible for complying with all applicable
procedural and evidentiary rules, that his actions during
the trial could adversely affect subsequent appellate or
postconviction remedies, and that a trained attorney
would have the requisite skill and training to better
protect his rights while trying his case. Id., 612–13.
In the present case, the defendant contends that the
trial court failed to adequately make him aware of the
dangers and disadvantages of self-representation
because it did not explain the limited role of standby
counsel. The limited role of standby counsel is set out
in Practice Book § 44-5, which provides: ‘‘If requested
to do so by the defendant, the standby counsel shall
advise the defendant as to legal and procedural matters.
If there is no objection by the defendant, such counsel
may also call the judicial authority’s attention to matters
favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and
may give advice only upon request.’’
‘‘[T]he role of standby counsel is essentially to be
present with the defendant in court and to supply the
limited assistance provided for in Practice Book § 44-
5 . . . . [S]tandby counsel does not, however, have any
obligation to perform legal research for the defendant.’’
(Footnote omitted.) State v. Fernandez, 254 Conn. 637,
658,
758 A.2d 842 (2000), cert. denied,
532 U.S. 913,
121
S. Ct. 1247,
149 L. Ed. 2d 153 (2001); see also State v.
Miller, 186 Conn. App. 654, 664 n.9,
200 A.3d 735 (2018)
(‘‘legal research is beyond the scope of the responsibilities of standby counsel’’). In discussing the role of
standby counsel, our Supreme Court has stated that
such counsel ‘‘serves as a legal resource to pro se defendants, thereby enabling them to have meaningful access
to the courts while still exercising their right to represent themselves.’’ (Internal quotation marks omitted.)
State v. Beaulieu, 274 Conn. 471, 479 n.3,
876 A.2d 1155
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State v. Britto
(2005); see also State v. Wang, 312 Conn. 222, 255 n.32,
92 A.3d 220 (2014) (‘‘standby counsel is an appropriate
channel through which a self-represented defendant
may access legal information’’); State v. Fernandez,
supra, 655 (‘‘[S]tandby counsel afforded the defendant
an adequate link to legal information. . . . [H]e could
answer the defendant’s questions about the law and
offer the defendant advice if he so requested.’’).
The limited role of standby counsel has been discussed in some cases as part of the risks associated
with self-representation. See State v. Diaz, 274 Conn.
818, 827,
878 A.2d 1078 (2005) (court informed defendant ‘‘of the limited role of standby counsel’’ during
canvass); State v. Davalloo, 153 Conn. App. 419, 445,
101 A.3d 355 (2014) (during canvass, ‘‘defendant said
that she understood that the role of a standby counsel
was to‘sit there mute’ unless she asked questions and
sought help from him’’), aff’d, 320 Conn. 123,
128 A.3d
492 (2016); see also State v. D’Antonio,
274 Conn. 658,
699,
877 A.2d 696 (2005) (court recanvassed defendant
to ensure that he understood, inter alia, role of standby
counsel); Ross v. Commissioner of Correction, 217
Conn. App. 286, 310,
288 A.3d 1055 (court explained
‘‘standby counsel’s limited role’’ to petitioner), cert.
denied, 346 Conn. 915,
290 A.3d 374 (2023).
From our review of the canvass in the present case,
it is clear that the defendant was apprehensive about
proceeding in a self-represented capacity based on his
lack of legal knowledge. At the conclusion of the trial
court’s canvass, when the court asked the defendant
whether he wanted to waive his right to counsel, the
defendant responded: ‘‘No.’’ The defendant explained:
‘‘[I]t’s obvious that I don’t know the law, I’m not a
lawyer,’’ and, ‘‘I’m going to need some help . . . along
the way with things that I may not be familiar with
because I’m not a lawyer.’’
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State v. Britto
In addition, it is apparent that the trial court’s appointment of standby counsel was integral to the defendant’s
decision to waive his right to counsel. Once the court
told the defendant, ‘‘it sound[s] like you’re gonna need
standby counsel,’’ the defendant responded: ‘‘Yeah.
Yes,’’ and stated that he did want to waive his right to
counsel. Even as the court continued with its canvass,
the defendant sought to ensure that he was proceeding
with the assistance of standby counsel.11
The trial court, however, did not explain the limited
role of standby counsel. Prior to its formal canvass,
the court had described standby counsel as ‘‘somebody
there with [self-represented defendants] to assist them
in some manner. Even though they may be doing the
case themselves, they still have someone assisting them
there who has a more in-depth knowledge of the law
itself . . . .’’ (Emphasis added.) When the court subsequently told the defendant that ‘‘it sound[s] like you’re
gonna need standby counsel,’’ it did not provide any
further explanation as to what kind of assistance
standby counsel would provide. Indeed, the court provided the defendant with no information from which he
could differentiate between the role of standby counsel
and that of full counsel.
Accordingly, we conclude that, under the particular
circumstances of the present case, where the trial
court’s appointment of standby counsel played a pivotal
role in the defendant’s decision to waive the right to
counsel, the court should have explained the limited
11
As set forth previously in this opinion, when the trial court asked the
defendant whether anyone had threatened him or forced him to waive his
right to counsel, the defendant responded: ‘‘Now, wait a minute. Wait a
minute. You just said something about I’m going to need standby counsel,
then you just asked me . . . .’’ The court reassured the defendant that it
would appoint standby counsel, stating, ‘‘I’m going to get to that part,’’ and
asking: ‘‘[H]as anyone threatened you or forced you to make this decision
to represent yourself today with standby counsel?’’ (Emphasis added.)
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role of standby counsel. Without such an explanation,
we cannot conclude that the defendant was adequately
aware of the dangers and disadvantages of self-representation.
In reaching this conclusion, we recognize that a
defendant ‘‘does not possess a constitutional right to a
specifically formulated canvass . . . .’’ (Internal quotation marks omitted.) State v. Williams, supra,206 Conn.
App. 559; see also State v. Joseph A., supra,
336 Conn.
259 (although canvasses in certain other cases
‘‘included specific warnings of the dangers of self-representation . . . the fact that the canvass the defendant
received in the present case was different from the
canvasses in those cases is not dispositive’’ (citations
omitted)). In the present case, however, the canvass
provided the defendant with no indication of the limited
role of standby counsel as set forth in Practice Book
§ 44-5.12 Accordingly, it is unclear whether the defendant was aware that he would receive advice from
standby counsel ‘‘only upon request’’; Practice Book
§ 44-5; or that standby counsel would not conduct legal
research on his behalf.13 See State v. Fernandez, supra,254 Conn. 658; State v.
Miller, supra,186 Conn. App.
664 n.9.
In sum, because the trial court failed to explain the
limited role of standby counsel, we cannot conclude
12
As set forth previously in this opinion, Practice Book § 44-5 provides:
‘‘If requested to do so by the defendant, the standby counsel shall advise
the defendant as to legal and procedural matters. If there is no objection
by the defendant, such counsel may also call the judicial authority’s attention
to matters favorable to the defendant. Such counsel shall not interfere with
the defendant’s presentation of the case and may give advice only upon
request.’’ (Emphasis added.)
13
Notably, the record also reflects that the court, Harmon, J., was aware
that the defendant was trying to obtain a DNA expert. The court, therefore,
should have provided a full explanation of standby counsel’s role, including
when a defendant seeks to obtain funding for an expert witness, as set forth
in State v. Wang, supra, 312 Conn. 222. See part II of this opinion.
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that the record affirmatively demonstrates that the
defendant, in choosing to represent himself, ‘‘[knew]
what he [was] doing and his choice [was] made with
eyes open.’’ (Internal quotation marks omitted.) State
v. Williams, supra,206 Conn. App. 552. Accordingly,
the canvass conducted by the court does not establish
that the defendant made a knowing and intelligent
waiver of his right to counsel.
II
The defendant also claims that the trial court violated
his due process rights, including his right to present a
defense, when it denied his request for a continuance
to obtain a DNA expert. Specifically, the defendant contends that the court improperly concluded that he,
rather than standby counsel, was responsible for
obtaining authorization for funding from the OCPD for
the expert.
‘‘As a general matter, when our appellate courts
reverse a judgment and remand the case for a new trial,
only claims likely to arise on retrial are addressed by
the reviewing court.’’ State v. Robert R., 340 Conn. 69,
92,
262 A.3d 810 (2021). Although we cannot say that
the defendant is unlikely to seek the assistance of a
DNA expert on remand, if he chooses to do so, that
process may result in a record different from the one
presently before us, and, accordingly, we decline to
address this claim at this time. See id.
Nevertheless, we briefly note that our Supreme
Court’s decision in State v. Wang, supra, 312 Conn. 222,
emphasized a more proactive role for standby counsel
in assisting an indigent self-represented party to obtain
funding for an expert witness. In that case, our Supreme
Court concluded that ‘‘an indigent self-represented
criminal defendant has a fourteenth amendment due
process right to [publicly] funded expert or investigative
services, to the extent that such services are reasonably
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State v. Britto
necessary to formulate and to present an adequate
defense to pending criminal charges.’’ Id., 231. In reaching that conclusion, the court stated that ‘‘an indigent
self-represented defendant may access funding for reasonably necessary defense costs through standby counsel’’; (emphasis added) id., 254–55; explaining that ‘‘the
trial court is authorized to appoint standby counsel,
and the commission is authorized 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. Standby counsel,
upon request by the indigent self-represented defendant, may seek approval from the commission to incur
[r]easonable expenses for necessary . . . costs of
defense that shall be paid from the budget of the commission upon approval of the commission.’’ (Emphasis
added; internal quotation marks omitted.) Id., 254; see
also id., 262 (‘‘[a]n indigent self-represented defendant
may navigate the commission’s existing administrative
procedures through standby counsel’’ (emphasis
added)).14
Although our Supreme Court noted that standby
counsel would continue to maintain a more limited role
than full counsel, it explained that the role of standby
counsel was ‘‘to facilitate the self-represented defendant’s compliance with the commission’s existing
administrative mechanisms for obtaining funding for
ancillary defense costs . . . .’’ Id., 263 n.37. Accordingly, even though we need not address whether the
14
Our Supreme Court’s summary of the commission’s internal procedures
for the approval of defense expenses is consistent with Day’s explanation
in the present case: ‘‘[A]ttorneys representing public defender clients must
obtain prior approval to hire experts and incur case related expenses by
submitting, in writing, a form providing a detailed explanation of the nature
of the case and the reasons why the expert or other service is necessary
for the defense. . . . The level of approval required depends on the estimated cost and type of service requested.’’ (Citation omitted; internal quotation marks omitted.) State v. Wang, supra, 312 Conn. 261–62.
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court improperly denied the defendant’s request for
a continuance, we note our concern with the court’s
determination that the defendant himself was solely
responsible for obtaining authorization for funding from
the OCPD for a DNA expert.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
