Ex parte Smith

• Decision Date: 06 April 2001
• Citation: 794 So.2d 1089
• Parties: Ex parte Lorenzo SMITH. (Re Ex parte State (Re State v. Lorenzo Ren Smith)).
• Court: Alabama Supreme Court

794 So.2d 1089

Ex parte Lorenzo SMITH.

(Re Ex parte State (Re State v. Lorenzo Ren Smith)).

1990871.

Supreme Court of Alabama.

April 6, 2001.

Ben E. Bruner and C. Pate DeBardeleben, Montgomery, for petitioner.

Eleanor I. Brooks, district atty., and Todd A. Brown, deputy district atty., Montgomery, for respondent.

Bruce A. Gardner of Hamilton & Gardner, Huntsville, for amici curiae Alabama Criminal Defense Lawyers Association and National Association of Criminal Defense Lawyers.

Brief filed in support of application for rehearing: Frances Allen Long, Sr., Presiding Judge; and H. Ward McMillan and James H. Fry, Judges pro se, as Judges on the Alabama Court of Criminal Appeals.

On Application for Rehearing

PER CURIAM.

The opinion released on September 29, 2000, is withdrawn and the following opinion is substituted therefor.

Lorenzo Ren Smith is charged in the Montgomery Circuit Court with capital murder, and the State has indicated it intends to seek the death penalty. The trial court declared Smith to be indigent. The circuit court also entered an order requiring the Montgomery Police Department (hereinafter usually referred to as "the Department") to provide Smith's attorneys with a free copy of certain discovery materials and to obtain reimbursement, at the conclusion of Smith's trial, from the Fair Trial Tax Fund. On the State's petition, the Court of Criminal Appeals, on January 21, 2000, without an opinion, issued a writ of mandamus directing the Montgomery Circuit Court to vacate that order. State v. Smith (No. CR-99-0560), ___ So.2d ___ (Ala.Crim.App. 2000) (table).

Smith now petitions this Court, pursuant to Rule 21, Ala.R.App.P., for a writ of mandamus directing the Court of Criminal Appeals to vacate its writ of mandamus. The sole issue raised by the petition is whether the trial court has the discretion to order the Department, without prepayment by the defense, to incur the costs associated with reproducing the discovery materials—but before we can address that question we must consider whether it has been properly brought up through the use of the mandamus procedure. For the reasons set forth below, we issue a writ directing the Court of Criminal Appeals to vacate its writ of mandamus.

The following facts are helpful to an understanding of this issue: In October 1998, a Montgomery County grand jury returned an indictment charging Smith with three counts of capital murder in the death of Mattie Patterson. The indictment was based on evidence indicating that Smith entered Ms. Patterson's apartment, strangled her with a telephone cord, and then stole property belonging to her. The State's evidence includes a videotaped confession Smith made to officers of the Montgomery Police Department, digitally produced photographs of the crime scene that have been stored on a compact disc, and DNA evidence that purportedly establishes the presence of the victim's blood on Smith's clothing. This evidence is in the possession of the Department.

The prosecution has given Smith's attorneys a copy of all the documents in its case file, and Smith's attorneys have been allowed to review and inspect the videotaped confession, the digitally produced photographs of the crime scene, and the results of tests performed on the DNA evidence. Additionally, Smith's attorneys have been given continuous access to this evidence, and they are allowed to examine it as often as necessary. The State has also agreed to furnish Smith's attorneys with copies of the evidence in the Department's possession, on the condition that Smith's attorneys pay the Department in advance for the costs it will incur in making the copies. The State asserts in its brief that the cost to reproduce the requested items of evidence would be about $75.00.

Smith's attorneys, however, are concerned that these arrangements proposed by the State would provide them little, if any, assistance in defending their client against a capital-murder charge. Smith has an IQ of about 59 and is moderately retarded. Smith's attorneys fear that he may lack the reasoning ability and memory to rationally discuss events essential to his defense, events that took place months before the trial will be held, such as his interrogation by the police, and they fear even more strongly that he will be unable to discuss such abstract concepts as those described by the terms "knowingly," "willingly," and "intelligently." In short, Smith's attorneys believe that, unless they are able to view the videotaped confession and the digitally produced photographs of the crime scene in the presence of Smith, they may as well not view them at all. Thus, they say, they need a copy of the videotape and a copy of the compact disc with the photographs.

On October 13, 1999, Smith moved the trial court to order the State to furnish his attorneys with copies of the requested evidence free of costs. The State did not oppose Smith's motion. On October 28, 1999, the trial court entered an order that stated, in pertinent part:

"It is hereby ordered that defendant's motion to be provided a copy of the videotape of [his] confession, a copy of the videotape of the crime scene, and a [compact disc] copy of the digital photographs taken at the crime scene at no cost to the defendant is granted. A reasonable sum will be ordered to be paid for the copies; however, the Montgomery Police Department will copy the videos within seven days from the date of this order, and [the Department] will turn over the copies to the counsel for the defendant, together with a statement for the Montgomery Police Department's copying services. At the conclusion of this action, the Court will order that the expenses for copying be paid from the Fair Trial Tax Fund."

(Emphasis added.)

On November 3, 1999, the State moved to have defense counsel pay for the costs of making copies of the evidence. The trial court denied this motion. The State moved for a "reconsideration" of that ruling, but the court denied that motion, as well. On December 22, 1999, the State petitioned the Court of Criminal Appeals for a writ of mandamus directing the circuit court to vacate its order and to order instead that Smith's attorneys pay the Department in advance for the costs incurred in copying the discovery materials in the Department's possession and to obtain reimbursement later in accordance with Ala. Code 1975, § 15-12-21. On January 21, 2000, the Court of Criminal Appeals granted the State's petition, issuing a writ of mandamus (unpublished) that read as follows:

"Circuit Judge William Shashy is ordered to vacate his October 28, 1999, order requiring the State to furnish the requested documents without receiving prepayment for the costs associated with producing copies. The costs associated with furnishing defendant Smith with the requested videotapes and photographs should be tendered by counsel before the State is obligated to provide copies. Expenses associated with discovery of requested evidence are expenses contemplated in § 15-12-21(d), Code of Alabama 1975, and which are recoverable by an appointed attorney at the conclusion of trial."

(Emphasis added.) It is from this order that Smith seeks relief.

We begin our analysis by considering this Court's holding in Ex parte Galanos, 796 So.2d 390 (Ala.2000) (issuing a writ directing the Court of Criminal Appeals to vacate its order issued in Ex parte Bush, 796 So.2d 383 (Ala.Crim.App.1998)). Peter Austin Bush was a Mobile attorney who accepted appointments to defend indigent criminal defendants before the Mobile Circuit Court. After he completed his work for his clients in 11 cases in the circuit court, Bush submitted a bill for his services, in the form of "attorney-fee declarations," to the Mobile Circuit Court. He expected the circuit court to approve his fee requests and then send them on to Montgomery for payment by the State comptroller, in accordance with Ala.Code 1975, § 15-12-21(e). The Mobile Circuit Court reviews indigent-defense attorney-fee declarations in the following manner: The responsibility for reviewing and approving all fee declarations "rotate...