Brooks v. State, s. S89A0071

Citation385 S.E.2d 81,259 Ga. 562
Decision Date02 November 1989
Docket NumberNos. S89A0071,S890A0229,s. S89A0071
PartiesBROOKS v. The STATE. The STATE v. BROOKS.
CourtGeorgia Supreme Court

Stephen B. Bright, George H. Kendall III, Atlanta, Gary Parker, Columbus, for Brooks.

Douglas C. Pullen, Dist. Atty., Columbus, J. Mark Shelnutt, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., for State.

CLARKE, Presiding Justice.

William Anthony Brooks was convicted in 1977 of the murder, armed robbery, rape and kidnapping of a young woman. He was sentenced to death. His murder conviction was vacated in Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985), vacated and remanded, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), reinstated, 809 F.2d 700 (11th Cir.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987), because of a harmful burden-shifting jury instruction on malice. In the re-trial for murder the state is again seeking the death penalty. This is an appeal from the trial court's decisions on two pre-trial motions. First, the trial court denied Brooks' motion to enjoin the state from seeking the death penalty in the retrial. Brooks appeals. Next, the trial court decided that Brooks was entitled to an ex parte hearing to determine whether he should receive state funds for investigative or expert assistance. The state appeals. We affirm both decisions of the trial court.

1. Brooks contends that double jeopardy bars the state from seeking the death penalty in the retrial. Double jeopardy applies to the sentencing phase of a capital trial if there was insufficient evidence at the original trial to support the aggravating circumstances, or if the jury recommended life imprisonment at the first trial. Spraggins v. State, 255 Ga. 195, 197-203, 336 S.E.2d 227 (1985), cert. denied, 476 U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986); Crawford v. State, 256 Ga. 57, 344 S.E.2d 215 (1986), cert. denied, 479 U.S. 989. Neither of these factors is present in the case at hand. Brooks argues that semantic problems with the form of the jury verdict indicate that the jury rejected the state's theory regarding the aggravating circumstances. 1 We disagree. In this case, as in Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), the words used by the jury did not track the statute verbatim. However, as in Gates, the intent of the jury is clear, and the evidence supports the finding of the aggravating circumstances. The verdict returned in this case can in no way be construed as an "acquittal" on the statutory aggravating circumstances. See Crawford, supra, 256 Ga. at 57, 344 S.E.2d 215. Therefore, double jeopardy does not bar the state from seeking to prove those aggravating circumstances in the re-trial.

2. In this division we address the question whether an indigent criminal defendant's application for funds for expert assistance shall be heard outside the presence of the counsel for the state. The state appeals from the trial court's order granting defendant's motion to make ex parte applications for funds. The trial court found that if an indigent defendant in justifying his need for expert assistance is compelled to reveal his theory of the case in the presence of the district attorney, he might be denied due process and equal protection vis-a-vis the non-indigent defendant who does not need to apply for public funds for assistance, and he might suffer an abridgement of his constitutional privilege against self-incrimination, his right to counsel, and his right to present a defense. Noting that the hearing on a motion for funds is non-adversarial in nature, the court found that the state has no interest in being present. The state argues that as the representative of the people of Georgia, it has a fundamental interest in being present at any hearing on an application for funds by defendant.

The state points to Anderson v. State, 258 Ga. 70, 365 S.E.2d 421 (1988), and Mafnas v. State, 149 Ga.App. 286, 254 S.E.2d 409 (1984). In each of these cases, no error was found in the trial court's refusal to exclude the district attorney from a hearing on a motion to subpoena witnesses. Mafnas, supra, contains the most extensive discussion of the problem. The Court of Appeals based its decision on the district attorney's position as representative of the state with an interest in questioning defendant as to his indigency and as to his showing of necessity and materiality. The authority for this holding was what is now Ga. Constitution of 1983, Art. VI, Sec. VIII, Para. I(d) (which describes the duty of the district attorney to represent the state in all criminal cases) and various statutes dealing with the duties of district attorneys.

The state argues that these authorities mandate the presence of the district attorney at a hearing where a criminal defendant makes a threshold showing of entitlement to public funds for the hiring of experts. We do not agree. These cases hold that on review the trial court's refusal to exclude a district attorney was not reversible error.

The United States Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), is relied upon by defendant. In Ake the Court found that "[W]hen the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent." Id. at 82-83, 105 S.Ct. at 1095-96. Defendant asserts that this language mandates an ex parte hearing. The state insists that Ake does not require that the hearing on the application be ex parte, that Ake concerns only the application for funds to hire a psychiatric expert, and that the court has refused to expand Ake in later decisions.

Defendant argues that since in making the application for funds it is critical that the defendant make a detailed showing of evidence involved, Thornton v. State, 255 Ga. 434, 339 S.E.2d 240 (1986), the presence of the state would force him to reveal his theory of the case to the state. This would, he contends, deprive him of his privilege against self-incrimination, his right to counsel, and his right to present a defense, and would raise due process and equal protection problems. Defendant points out that the ex parte language in Ake v. Oklahoma, F.R.Crim.P., Rule 17(b), and 18 U.S.C. § 3006(A)(e) have been interpreted to require that such hearings occur outside the presence of the prosecutor. United States v. Meriwether, 486 F.2d 498 (5th Cir.1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3074, 41 L.Ed.2d 668 (1974).

We have found no clear authority, and the parties have shown us none, mandating that hearings on motions for public funds be held ex parte. The Ake holding does not clearly mandate that the hearing be ex parte. Other federal cases upon which defendant relies construe federal statutes providing for ex parte hearings and are not binding upon us.

While we have noted that we are bound by neither federal statutes dealing with the indigent defendant's obtaining expert assistance nor the cases construing them, these cases do contain helpful analysis. In United States v. Meriwether, supra, the court discussed the 1966 amendment to F.R.Crim.P., Rule 17(b), which provides that application for subpoenas by defendants unable to pay for them be made to the court ex parte. The court disagreed with the prosecutor's contention that ex parte means without the participation of the other and held that ex parte means outside the presence of the other. Further, the court found that the reason that the hearing must be ex parte is not to protect the defendant from the opposition of the prosecutor but to protect the defendant from revealing his theory of the case to the prosecutor. Finally, the court found that to place the indigent defendant in the position of revealing his theory of the case in the presence of the prosecutor in the context of a motion for funds to subpoena witnesses when a non-indigent defendant could avoid similar scrutiny would...

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    ...youth, emotional instability and mental problems might have had on his culpability for the murder."). 36. Compare Brooks v. State, 259 Ga. 562, 565, 385 S.E.2d 81 (1989) (indigent defendant's request for funds for expert assistance may be made ex parte); Bright v. State, 265 Ga. 265, 276-27......
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    ...conclude that, at least in the context of a request for a psychiatric expert, an ex parte hearing is required. See also Brooks v. State, 259 Ga. 562, 385 S.E.2d 81 (1989) (Hearings must be ex parte, but State must be given notice of the filing of the motion and may submit a brief in opposit......
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    ...he would not be able to present a defense at the guilt or punishment phases of the trial. b. Pursuant to Brooks v. State, 259 Ga. 562, 563-566(2), 385 S.E.2d 81 (1989), a defendant who contends that he or she is entitled to obtain expert assistance at public expense is entitled to have an e......
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