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03/24/95 EX PARTE STATE ALABAMA (RE EDWARD RUSSELL

March 24, 1995

EX PARTE STATE OF ALABAMA (RE: EDWARD RUSSELL DUBOSE
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Escambia Circuit Court, CC-89-39; Court of Criminal Appeals, CR-89-359). Joseph B. Brogden, TRIAL JUDGE.

Certiorari Denied May 19, 1995. Rehearing Denied May 19, 1995.

Shores, Hornsby, C.j., and Maddox, Almon, Houston, Ingram, Cook, and Butts,* JJ., concur.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

Edward Russell Dubose was convicted of three counts of capital murder. The Court of Criminal Appeals reversed the conviction on the basis that the trial court had unconstitutionally denied the defendant's request for funds for a DNA expert to counter the expert DNA evidence offered by the State. We find the statement of facts contained in the opinion of the Court of Criminal Appeals to be correct, and we adopt it here as our own. See Dubose v. State, [1993] 662 So. 2d 1156 (Ala. Crim. App. 1993).

In its petition and brief to this Court, the State of Alabama raises a number of issues. The State contends that defense counsel in this case was not eligible for reasonable expenses under § 15-12-21, Ala. Code 1975, because Dubose had a $10,000 "defense fund" and because the defense attorney was not "appointed." The State also contends that Dubose is not entitled to expert funds because, it argues, the holding of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), does not extend beyond its application to psychiatric experts. The State also contends that Dubose's request for expert funds was not timely. Finally, the State contends that Dubose failed to make an adequate showing of a need for expert services.

We agree with the holding of the Court of Criminal Appeals with regard to the first issue as to whether Dubose was eligible for reasonable expenses under § 15-12-21, Ala. Code 1975. In Ex parte Sanders, 612 So. 2d 1199 (Ala. 1993), the defendant was found at his arraignment to be indigent, and the court appointed counsel to represent him. Two weeks later, the defendant's family retained counsel to represent him and the appointed counsel withdrew. Before trial, Sanders asked the court to approve funds to pay for a ballistics expert. The trial court denied the motion for funds to pay the expert, stating, "You have got retained counsel, and I am not going to provide funds to do that." Sanders at 1200. In holding that it was error for the trial court to deny Sanders's request for a ballistics expert on a finding that he was not indigent, this Court stated:

"Section 15-12-1 defines an indigent defendant [as] 'any person involved in a criminal or juvenile proceeding in the trial or appellate courts of the state for which proceeding representation by counsel is constitutionally required and who under oath or affirmation states that he is unable to pay for his defense and who is found by the court to be financially unable to pay for his defense.' Section 15-12- 21(d) provides that 'Counsel [appointed to defend an indigent defendant] shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court....'

". . . .

"The criteria for determining indigency are set out in § 15-12-5(b):

"'In determining indigency, the Judge shall recognize ability to pay as a variable depending on the nature, extent and liquidity of assets, the disposable net income of the defendant, the nature of the offense, the effort and skill required to gather the pertinent information and the length and complexity of the proceedings.'

"We agree with the holding of the Court of Criminal Appeals in Russaw v. State, 572 So. 2d 1288 (Ala. Cr. App. 1990), that the assets of friends and relatives, not legally responsible for the defendant, are not included within the 'assets' referred to in § 15-12-5(b).

"'This is in accord with the general rule that "the earnings or property of various persons other than the accused, but in some way related to him, [should] not be considered in determining his indigency, the test being the personal means of the accused." Annot., 51 A.L.R.3d 1108, § 4 (1973). "The court must look only to the defendant's own earnings and assets, disregarding the potential assistance of friends and relatives who have no obligation to support the defendant." 2 W. LaFave and J. Israel, Criminal Procedure § 11.2(e) at 28 (1984).'

" 572 So. 2d at 1295.

"If the assets of friends and relatives who are not legally responsible for the defendant are not included in determining a defendant's indigency, then the fact that a friend or relative pays for an indigent defendant's counsel should not be considered in determining whether the defendant is entitled to funds for expert assistance. The simple fact that the defendant's family, with no legal duty to do so, retained counsel for the defendant, does not bar the defendant from obtaining funds for expert assistance when the defendant shows that the expert assistance is necessary."

612 So. 2d at 1200-01.

With the foregoing principles in mind, we hold that Dubose's motion for indigent status should have been granted by the trial court. The State argues that the trial court correctly denied Dubose's motion to be certified as indigent because, it says, a $10,000 "defense fund" existed at the outset of the criminal proceedings against Dubose. However, the defense fund had a balance of only $27.00 when Dubose asked to be certified as indigent. The original $10,000 consisted entirely of contributions from friends and relatives not legally responsible for Dubose's defense. Dubose's wife and children were on public assistance, Dubose had no income, and his wife was unemployed. He and his wife had no property other than a 1980 Chevrolet automobile "worth about $600" and a mobile home on which they had a $200 monthly mortgage payment; the mobile home was located on real estate owned by his wife's parents. The trial court certified Dubose as indigent for purposes of appeal, on the same evidence of indigence.

The State argues that, because § 15-12-21(d) speaks in terms of counsel who has been appointed, an indigent defendant represented by retained counsel cannot be entitled to state assistance for trial preparation essential to assuring the defendant's right to a fair trial. However, this Court in Sanders saw no conflict between § 15-12-21(d) and the requirement that a defendant be provided with funding for expert assistance vital to the defense. Sanders at 1200.

We turn then, to the issue whether Dubose should have been provided an expert on DNA to counter the DNA evidence offered by the State. The State argues that Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), does not extend beyond its application to psychiatric assistance.

In Ake v. Oklahoma, the issue was whether an apparently insane indigent had the right of access to a psychiatrist to determine his sanity at the time of the alleged offense. The Supreme Court concluded that the Due Process Clause guarantee of fundamental fairness is implicated "when [an indigent] defendant demonstrates to the trial Judge that his sanity at the time of the offense is to be a significant factor at trial" and that "the State must, at minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83. We note that the Supreme Court's decision in Ake dealt specifically with psychiatric experts.

In Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), the Supreme Court found "no need to determine as a matter of federal constitutional law what, if any, showing would have entitled a defendant to assistance of the type there sought [a criminal investigator, a fingerprint expert, and a ballistics expert]," given that "[the] petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial." Caldwell, 472 U.S. at 324 n.1.

Ake and Caldwell, taken together, hold that a defendant, to be entitled to funds to pay for an expert, must show more than a mere possibility of assistance from an expert. Rather, the defendant must show a reasonable probability that an expert would aid in his defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial. Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.), cert. denied, 484 U.S. 1054 (1987). Neither case limits the application of the Ake principle to a psychiatrist, nor have our cases interpreting Ake specifically ruled that the holding of Ake was limited to cases involving a psychiatrist.

In the past, Alabama decisions denying expert assistance have been based upon a finding that the defendant did not make an adequate showing of a need for the requested expert. See Smith v. State, 623 So. 2d 369 (Ala.Cr.App. 1992), cert. denied, 114 S. Ct. 650, 126 L. Ed. 2d 607, 62 U.S.L.W. 3405 (1993) (juvenile not entitled to independent testing of a shotgun when the testing was not shown to be critical to the defense); Dill v. State, 600 So. 2d 343, aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, 113 S. Ct. 1293, 122 L. Ed. 2d 684, 61 U.S.L.W. 3582 (1993) (defendant made no showing of need for assistance of psychiatrist; no error in court's failure to appoint private investigator); McLeod v. State, 581 So. 2d 1144 (Ala.Cr.App. 1990) (defendant not entitled to appointment of an investigator to assist in preparing defense, absent specific reasons demonstrating necessity for investigator); Siebert v. State, 562 So. 2d 586, aff'd, 562 So. 2d 600 (Ala. 1990), cert. denied, 498 U.S. 963, 112 L. Ed. 2d 408, 111 S. Ct. 398 (1990) (denial of motion for appointment of expert to assist in preparing motion for a change of venue is proper where defendant "has not shown a need for such expert"); Stewart v. State, 562 So. 2d 1365 (Ala.Cr.App. 1989) (appellant failed to make a significant preliminary showing of insanity to be entitled to psychiatric assistance); McGahee v. State, 554 So. 2d 454, aff'd, 554 So. 2d 473 (Ala. 1989) (no specific request for doctor to be appointed as expert, and defense counsel "offered little more than undeveloped assertions" that an expert was necessary); Davis v. State, 549 So. 2d 577 (Ala.Cr.App. 1989) (semen test "not necessary to guarantee an adequate defense"); Garth v. State, 536 So. 2d 173 (Ala.Cr.App. 1988) (expert on "home race bias" was not necessary for defendant's defense); Nelson v. State, 511 So. 2d 225, aff'd, 511 So. 2d 248 (Ala. 1987), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 217, 108 S. Ct. 1755 (1988) (no showing that investigators, psychiatric evaluation, or expert witnesses were necessary for an adequate defense); Duren v. State, 507 So. 2d 111, aff'd, 507 So. 2d 121 (Ala. 1987), cert. denied, 484 U.S. 905, 98 L. Ed. 2d 206, 108 S. Ct. 249 (1987) (defendant not entitled to a polling expert, a jury selection expert, or an expert on death-qualified juries, a psychologist and psychiatrists and a presentence investigation expert, because of insufficient showing of need and because defendant offered only the "undeveloped assertions that the requested assistance would be beneficial"); Tarver v. State, ...


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