Opinion
FBTCR16293596T
12-12-2017
STATE of Connecticut v. Diamond GARVINS
UNPUBLISHED OPINION
OPINION
ROBERT J. DEVLIN, JR., JUDGE
The defendant, Diamond Garvins, is charged with assault first degree in violation of General Statutes § 53a-59(a)(1) arising out of an incident wherein the defendant allegedly stabbed his mother in the head, torso and neck resulting in the loss of her left eye. He was arrested at the scene and taken to a psychiatric ward at St. Vincent’s Hospital where he stayed for over a month. Now age twenty-nine, the defendant has a prior mental health history going back to age fourteen.
The defendant is represented by Attorney Neal Rogans. Attorney Rogans is an experienced attorney practicing in Fairfield County with a law office in Westport. He is a respected member of the bar and well-qualified to represent the defendant. Attorney Rogans is representing the defendant pro bono. He has received no fee whatsoever for his services.
The defendant has submitted a financial affidavit listing zero income and zero assets. This court finds that he is presently indigent. Attorney Rogans has concluded that he needs to have his client examined by a psychiatrist in order to formulate and possibly present a defense based on mental disease or defect pursuant to General Statutes § 53a-13. It is apparent that such an examination is reasonably necessary for that purpose.
At this court’s suggestion, Attorney Rogans contacted the Office of Chief Public Defender (OCPD) seeking approval of funds to engage a psychiatrist. Attorney Rogans had no objection to using a psychiatrist on the approved list maintained by the OCPD who was willing to provide services at the approved rate. The OCPD denied the request because the defendant was represented by Attorney Rogans. Thereafter the defendant filed the present motion seeking funds to retain a psychiatric expert.
A hearing on the motion was held on November 29, 2017. At the hearing, counsel appeared representing the interests of the OCPD. The OCPD’s position was that, while the defendant did qualify for public defender representation and the corresponding access to funds for a psychiatric expert, no funds would be paid for such purpose because of Attorney Rogans’ representation. Attorney Rogans’ position was that his client was indigent and a psychiatric expert is vital to the defense. Moreover, Attorney Rogans noted that his serving pro bono is consistent with the Rules of Professional Conduct and that his client should not be deprived of funds for a necessary expert because he has a free lawyer.
See Rule 6.1 Pro Bono Public Service (A lawyer should render public interest legal service).
For the reasons set forth below, this court grants the motion for funds to retain an expert witness. This court further orders that the defendant should follow the protocol of the OCPD in applying for such funds and that the OCPD shall not unreasonably deny such funds for a psychiatric expert.
The issue in the present case is largely (but not completely) controlled by the decision of our Supreme Court in State v. Wang, 312 Conn. 222 (2014). In Wang, the indigent self-represented defendant sought public funds for a mental health expert. The parties requested reservation of questions of law as to whether the defendant had a due process right to publicly funded expert services and, if so, should such funds come from the OCPD. Id., 224.
In answering both questions in the affirmative, our Supreme Court examined the fourteenth amendment jurisprudence in this area with particular emphasis on the seminal case of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Our Supreme Court’s analysis resulted in several findings that are pertinent to the present motion.
First, the court concluded that " an indigent self-represented defendant has a fourteenth amendment due process right to publicly funded expert services to the extent that such services are reasonably necessary to formulate and to present adequate defense to pending charges." State v. Wang, supra, 312 Conn. 227. As to a case, like the present one, where the defendant’s mental state is in issue, our Supreme Court cited Ake for the proposition that " when an indigent defendant makes a threshold showing that his sanity is likely to be a significant factor in his defense, due process requires that the state provide him access to a competent psychiatrist to assist in evaluation, preparation and presentation of the defense." Id., 234-35.
Second, our Supreme Court in Wang expressly rejected the argument (also made in the present case) that the right of an indigent defendant to access the tools of an adequate defense depended on whether the defendant is self-represented or represented by appointed counsel. Id., 230. Stated differently, our Supreme Court made clear that the due process right to publicly funded expert services is not tethered to the right to counsel.
Based on the above, this court finds that the indigent defendant in the present case has a due process right to engage a psychiatrist at public expense. The question then becomes: where should the public funds come from to pay such expense? Wang made two determinations relevant to this question. First, that the trial court did not have the discretion to authorize public funding for ancillary defense costs for self-represented defendants based on a threshold finding that such costs are reasonably necessary to an adequate defense. Id., 241. Second, that the Office of Chief Public Defender is authorized to fund the reasonably necessary costs of indigent self-represented criminal defendants. Id., 248.
Obviously, what sets the present case apart from Wang is that the present indigent defendant is not self-represented but rather represented by pro bono counsel. At note 18 of the Wang opinion, our Supreme Court stated:
Our holding in this case is limited to the provision of publicly funded expert or investigative assistance for an indigent self-represented defendant at a criminal trial. Accordingly we express no view as to whether an indigent defendant represented by pro bono counsel is entitled to access to public funding for expert or investigative assistance. State v. Wang, supra, 231 n.18.
While understandably only deciding the issue squarely before the court, it is noted that immediately after note 18 the Wang opinion cites the New Mexico case of State v. Brown, 139 N.M. 466, 134 P.3d 753 (2006). That case held that constitutional considerations, along with state statutes providing for indigent criminal defense, mandate that an indigent defendant represented by pro bono counsel be afforded the same access to expert witness funding as indigent defendants represented by the public defender. Id., 472.
In the present case, there is no meaningful distinction between the defendant here, Diamond Garvins, and the defendant in Wang. As in Wang, Garvins is indigent and in need of a psychiatric expert. The fact that a lawyer has stepped forward to represent Garvins without fee should not disqualify him from access to public funds. Moreover, Wang determined that those funds should come through the OCPD.
For the reasons set forth above, the Motion for Funds for Retention of Expert Witness is granted. The defendant shall apply to the OCPD for funds necessary to explore and present a psychiatric defense. Approval of such funding shall not unreasonably be denied.
So Ordered at Bridgeport, Connecticut this 12th day of December 2017.