City of Mount Vernon v. Cochran

• Decision Date: 06 July 1993
• Docket Number: No. 29673-6-I,29673-6-I
• Citation: 855 P.2d 1180,70 Wn.App. 517
• Court: Washington Court of Appeals
• Parties: CITY OF MOUNT VERNON, Respondent, v. Timothy A. COCHRAN, Petitioner. Division 1

Page 517

70 Wn.App. 517

855 P.2d 1180

CITY OF MOUNT VERNON, Respondent, v. Timothy A. COCHRAN, Petitioner.

No. 29673-6-I.

Court of Appeals of Washington,

Division 1.

July 6, 1993.

Helen Anderson, Washington Appellate Defender, Seattle, for petitioner.

Linford C. Smith, City Atty., and James William Nelson, Deputy Pros. Atty., Mount Vernon, for respondent.

SCHOLFIELD, Judge.

Timothy A. Cochran seeks a review of a trial court order on writ of review reversing a court commissioner's decision appointing an expert witness. We reverse the Superior Court.

On November 20, 1990, in Mount Vernon, Washington, petitioner Timothy Cochran was cited for driving while under the influence (DWI) and illegal possession and/or consumption of alcohol. In December 1990, an attorney with the Mount Vernon Public Defender's Office filed a notice of appearance on Cochran's behalf in the Mount Vernon Municipal Court.

In late February 1991, the City claims it received a memorandum from defense counsel which listed Dr. Michael Hlastala as a witness. The memo purportedly described Hlastala as an expert on the BAC Verifier DataMaster who would testify to the unreliability of the machine. At a pretrial conference on February 20, 1991, defense counsel gave notice that Hlastala would be called as an expert. The City claims that on March 4, 1991, defense counsel indicated that Hlastala's fee would be paid from the City's Public Defender budget.

On March 11, 1991, a hearing was held addressing the propriety of Cochran using Hlastala as an expert witness. The City filed an objection to the hiring of Hlastala with the use of public funds. The City claimed that, under CrRLJ 3.1(f)(1), the Public Defender could not use government funds to hire an expert without requesting such funds through a motion to the court. The City claimed the defense had presented no evidence that Hlastala's testimony was necessary to an adequate defense under CrRLJ 3.1(f)(1). Finally, the City claimed that Hlastala's testimony was not generally accepted in the scientific community. Cochran responded with a formal motion for authorization of expert witness fees under CrRLJ 3.1(f), stating that he was indigent and that Hlastala's testimony was necessary for an adequate defense.

In the March 11 hearing, defense counsel claimed that Hlastala was not going to testify about Cochran per se, but was going to testify more about the DataMaster and the problems with the machine. Counsel explained:

Well there are a number of scientific flaws with this machine, and that's what we need Dr. Hlastala here to testify for. We are not satisfied that that machine accurately measures the person's breath sample, sample of alcohol on the breath. Dr. Hlastala is here to testify about some concerns, about the problems that the machine has, that's why we need him. We need him to put on an adequate defense. As far as whether his testimony is accepted in the scientific community, Dr. Hlastala has published numerous articles, over almost 200 publications in the scientific areas. He's testified for numerous trials on this very issue. He's published a lot of papers. He's certainly an expert, I will have no trouble laying a foundation at trial that he is qualified to testify about this breath machine. As far as the connection with the defendant, that's not really relevant because we're really going to be testifying only about the machine involved in this particular case. And some of the particular problems that it may have. So it's not even relevant whether ... he meets the clients or not. That has no bearing on this procedure....

The court commissioner then gave his ruling:

Mr. Arganian, I have to tell you in all candor, I listened to Dr. Hlastala, ... he's testified several times, I've seen a lot of his information. By in large, most of what he proposes is preposterous, ... The other side of the coin is that ... and I have to tell you, that I can't tell you that I can honestly say that I think that Hlastala's testimony is absolutely necessary in order to present an adequate defense. I do think that his testimony may be helpful, and I don't think it requires the showing of absolute necessity. I think it shows that it requires a showing of reasonable necessity in the language that they use. Yeah, they just say necessary. And I do know for a fact that Michael Hlastala testifies at a sufficient number of cases and has been helpful to the defendant in a sufficient number of cases, and I don't think it's unreasonable for you to request his appearance in this particular case.... In terms of whether his testimony is accepted in the scientific community[,] I think anytime you can find one scientist who will say up, you'll find another one who will say down. I know he testifies a lot, I know he writes a lot of articles, I know a lot of people with very preposterous ideas that write a lot of articles and get them published, but I'm not really sure that the Frye [v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir.1923) ] standard is not being met because I think there's [sic ] enough people that are listening to what Hlastala says that you can say that it's at least tentatively accepted if not completely accepted. What you're dealing with is more of a technical issue, I think, than a scientific principle, so I'm not sure if Frye would even necessarily be the appropriate standard to apply. We're not looking at a scientific standards [sic ] here, what we're looking at is whether Hlastala feels that there is [sic ] inherent problems with the fashion, the technical fashion of measurement being used. So I would authorize the appointment of Dr. Hlastala ... on this particular case.

The City applied for a writ of review in Skagit County Superior Court, claiming that the court commissioner's authorization for payment of Hlastala as an expert witness was erroneous and contrary to law. A writ of review was subsequently issued. The City claimed in part that the court commissioner abused his discretion in appointing Hlastala where there was no evidentiary record establishing that his opinion was based on a theory generally accepted in the scientific community. In response, Cochran filed a motion asserting in part that the Mount Vernon Public Defender had its own budget for the appointment of expert witnesses, and that the only reason it sought an appointment under CrRLJ 3.1(f) was because of a letter from the City Attorney suggesting that the City Council would not approve payment for Hlastala. ¹ Cochran urged the court to rule that the City Attorney's Office was precluded from challenging how the Mount Vernon Public Defender's Office spends its funds.

The court on review initially affirmed the commissioner's decision permitting funding for Hlastala, ruling there had been no abuse of discretion and that the City had failed to show that the Public Defender lacked the authority to spend its funds to hire an expert witness. On reconsideration, however, the court changed its ruling. In a decision and order filed October 28, 1991, the court ruled, in part:

1) Dr. Michael Hlastala's testimony has not been shown to be accepted in the scientific community; 2) it has not been shown that Dr. Hlastala's testimony is necessary to an adequate defense; and 3) the Public Defender's office may not circumvent the intent and the purpose of CrRLJ 3.1(f)(3) by hiring experts at the expense of the city and paying for those experts from the budget established for them by the City without first obtaining approval from the court.

The Superior Court reversed the commissioner's order appointing Hlastala as an expert witness and further ordered the Public Defender to cease expending public funds to hire expert witnesses without prior approval from the court.

Cochran sought discretionary review of the Superior Court's decision, claiming that the issue involved was one of substantial public interest under RAP 2.3(d)(3) and that the court had so far departed from the usual course of judicial proceedings as to call for review. See RAP 2.3(b)(3). The City conceded that review was justified under RAP 2.3(d)(3). This court therefore granted Cochran's motion for discretionary review.

Cochran claims the Superior Court erred in finding, on an inadequate record, that Hlastala's testimony would be inadmissible at trial.

Cochran asserts that it is not necessary to establish fully an expert's qualifications to testify in order to obtain authorization to hire the expert for assistance in preparing a defense. The City responds that the Superior Court correctly found that it was an abuse of discretion for the trial judge to appoint a career expert witness who the judge stated based his " 'preposterous' " testimony on " 'dubious scientific research' ". Brief of Respondent at 4. The City claims that Hlastala's testimonial evidence has not been accepted in the scientific community, that it is not necessary to an adequate defense, and that Cochran already had access to expert assistance.

CrRLJ 3.1((f) provides as follows, in part:

(f) Services Other Than Lawyer.

(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.

(2) Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court, or a person or agency to whom the administration of the program may have been delegated by local court rule, shall authorize the lawyer to obtain the services on behalf of the defendant....

(3) Reasonable compensation for the services shall be determined and payment directed to the organization or person who rendered them upon the filing of a claim for compensation supported by affidavit specifying the time expended and the services and expenses incurred on behalf of the defendant, ...

As part of an indigent defendant's constitutional right to effective assistance of co...