Ex parte Moody

• Decision Date: 19 April 1996
• Citation: 684 So.2d 114
• Parties: Ex parte Walter Leroy MOODY, Jr. (Re State of Alabama v. Walter Leroy Moody, Jr.). 1941642.
• Court: Alabama Supreme Court

Page 114

684 So.2d 114

Ex parte Walter Leroy MOODY, Jr.

(Re State of Alabama v. Walter Leroy Moody, Jr.).

1941642.

Supreme Court of Alabama.

April 19, 1996.

As Modified on Overruling of Rehearing

Sept. 27, 1996.

Walter Leroy Moody, pro se.

Jeff Sessions, Atty. Gen., and Rosa Davis, Robert Morrow and Sandra Stewart, Asst. Attys. Gen., for Respondent.

PER CURIAM.

Walter Leroy Moody is charged with capital murder. His court appointed counsel sought funds to pay attorney fees, expenses, and expert fees. The trial court, following an ex parte proceeding, directed the state comptroller to immediately pay the expenses. The comptroller refused, arguing that § 15-12-21, Ala.Code 1975, provides that such fees are to be paid only after the trial concludes.

The State petitioned for a writ of prohibition, requesting that the Court of Criminal Appeals quash all ex parte orders of the trial court that directed immediate payment of the funds. The Court of Criminal Appeals granted the writ and subsequently denied rehearing.

Moody then petitioned for certiorari review, claiming that the writ of prohibition ordering the trial court to set aside the ex parte orders violated his rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We granted the petition to consider Moody's claims. Ex parte Moody, 658 So.2d 446 (Ala.1995).

Immediately before we granted certiorari review, the trial court allowed Moody's appointed counsel to withdraw and allowed Moody to proceed pro se. Therefore, the issue whether Moody's court-appointed counsel was entitled to attorney fees, expenses, and fees for experts was found moot by this Court.

Notwithstanding those facts, the Court noted that the former attorney general had agreed to furnish to the trial court $35,000 in funds to supplement the attorney fees payable to Moody's court-appointed counsel under § 15-12-21(d), Ala.Code 1975. The former attorney general's agreement stated that providing the funds was a "one-time action, and there will be no others like it." It added: "This action in no way obligates the Attorney General to pay any amount of funds for any reason in this case or any other case. Likewise, the State is not in any way obligated to pay any funds for any purpose in this case or any other case, except to the extent specifically prescribed in [s] 15-12-21 through [s] 15-12-23...."

The trial court ordered the attorney general to deposit the $35,000 with the circuit clerk's office and ordered that payment of the funds be approved by the trial court. Through numerous periodic payments, the $35,000 was withdrawn by Moody's court-appointed counsel for payment of various expenses incurred during their two years of representing Moody before they withdrew.

This Court found that Moody's argument that the failure to provide interim payment of expenses for experts violates his constitutional rights was premature. Moody, the Court held, is entitled to expert assistance only if he makes a threshold showing, approved in advance by the trial court, that expert assistance is necessary and critical for trial, in accordance with Dubose v. State, 662 So.2d 1189 (Ala.1995), and only if he presents evidence, e.g., by affidavit, that the expert will not testify without being partially or completely compensated before he or she testifies or before the conclusion of the trial. The writ of certiorari was quashed, and no application for rehearing was filed.

Subsequently, the trial court entered an order stating, "[I]n order to remove this impasse [Moody's allegation that his experts would not work without interim payment], it is necessary for the court to exercise its inherent authority to supervise pretrial matters." The trial court appointed an attorney, similar to a special master under the Rules of Civil Procedure, to conduct an investigation on behalf of the court, and only at the direction of the court, concerning interim payment of Moody's expert witnesses.

The trial court ordered that the "special master" "shall inquire of the expert witnesses of the defendant whether they will work for the defendant, provide reports, assist in preparation of his defense, and/or testify at trial, but receive reimbursement at the conclusion of the case as is required under Alabama law." The trial court ordered the special master to locate experts other than those named by Moody, who would be willing to aid Moody and not be paid until the conclusion of the trial. The trial court also ordered that the special master conduct the investigation without participation by the State or Moody and report its findings only to the trial court. The trial court later amended its order to delete any and all requirements that the special master locate experts other than those named by Moody, who would be willing to aid Moody.

Moody then filed a petition with this Court, along with additional materials, asking (1) that "this ... court ... take whatever action [is] necessary to prevent petitioner from being forced to trial before the constitutional questions raised by the State's refusal to provide funds necessary for [this] indigent petitioner to provide an adequate defense [have] been resolved"; and (2) "that this Court ... take whatever action [is] necessary for the proper Alabama court to rule on the constitutional questions raised by the State's refusal to provide funds necessary to [this] indigent petitioner to prepare an adequate defense."

The issue whether Moody is entitled to certain experts and, if so, whether those experts are entitled to be paid in advance is no longer premature, based on the additional materials filed by Moody with his most recent petition. Those materials included ex parte orders entered by the trial court finding that the services of certain experts were necessary to assure the fairness of the trial. The trial court forwarded to this Court the special master's findings that 16 of the 24 expert witnesses requested by Moody had submitted affidavits stating that they would require receipt of advance payment to cover travel expenses for any trip in connection with this case and receipt of interim payment after completion of any work done in preparation for trial. Therefore, Moody complied with this Court's directions in Moody, 658 So.2d 446, and his latest petition is timely.

The issues presented in this case have prompted this Court to expressly set out what an indigent defendant is entitled to concerning expert assistance. The United States Supreme Court has stated, interpreting the Fourteenth Amendment, that "justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake." Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). "There can be no equal justice where the kind of trial a man gets depends upon the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

When an indigent defendant is involved in a criminal proceeding, the state must take certain precautions to "assure that the defendant has a fair opportunity to present his defense." Ake, 470 U.S. at 77, 105 S.Ct. at 1093. For background, we note that among these precautions is assuring that an indigent defendant has court-appointed trial counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and court-appointed appellate counsel on direct appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). An indigent defendant is entitled to free trial transcripts on first appeal and the right to file a notice of appeal without first paying a filing fee. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959). The state must also ensure that the defendant's counsel is effective, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Ake v. Oklahoma, the Supreme Court held that an indigent defendant is entitled to expert psychiatric assistance at public expense. In Ake, the issue presented was whether the United States Constitution requires that an indigent defendant have access to a psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question. The Court held that the defendant was entitled to participation by a psychiatrist when psychiatric evaluation was important in preparing the defense. The relevant factors in making this determination are: (1) the private interest that will be affected by the action of the state; (2) the governmental interest that will be affected if the safeguard is to be provided; and (3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of erroneous deprivation of the affected interest if those safeguards are not provided.

When the defendant is able to make a 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. Ake. "The obligation of the State is limited to the provision of one competent psychiatrist." Ake, 470 U.S. at 79, 105 S.Ct. at 1094.

Notably, the Supreme Court stated that it was not saying that the "indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own." Ake, 470 U.S. at 83, 105 S.Ct. at 1096. The Supreme Court's concern is that the indigent defendant have access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Although the Supreme Court has not specifically stated what "threshold showing" must be made by the indigent defendant with regard to the need for an...