Finch v. State, CR-95-2315

• Decision Date: 19 December 1997
• Docket Number: CR-95-2315
• Citation: 715 So.2d 906
• Parties: Roviar FINCH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 906

715 So.2d 906

Roviar FINCH v. STATE.

CR-95-2315.

Court of Criminal Appeals of Alabama.

Dec. 19, 1997.

Rehearing Denied Jan. 30, 1998.

Certiorari Denied May 22, 1998

Alabama Supreme Court 1970782. ^**

W. Barry Alvis, Birmingham, for appellant.

Bill Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Roviar Finch, was convicted by a jury of both murder and attempted murder, violations of §§ 13A-6-2 and 13A-4-2, Code of Alabama 1975, respectively. The trial court sentenced the appellant to life imprisonment on each conviction; the terms were to run consecutively. The appellant raises five issues on appeal.

I.

The appellant argues that the trial court violated his due process rights when it denied his motion for expert assistance without first conducting a formal ex parte hearing. In support of his argument, the appellant relies solely upon the Alabama Supreme Court's decision in Ex parte Moody, 684 So.2d 114 (Ala.1996), in which that court held that an indigent defendant has a constitutional right to an ex parte hearing on whether expert assistance is necessary. This issue provides this court with the first opportunity to determine what constitutes an "ex parte hearing" in light of the procedural due process requirements announced in Moody.

At arraignment, the trial court determined that the appellant was indigent and appointed counsel to represent him. Before trial, the appellant filed what he styled as an "Ex Parte Motion for Expert Assistance Under Seal," requesting that the trial court allocate to him the funds necessary to employ a criminal investigation expert. ¹ The appellant stated in the motion that "[t]his motion has not been filed upon the [State] as it is being filed ex parte." The motion did not contain a request that the trial court hold a formal ex parte hearing on the matter, and the appellant did not request a hearing in any other conversation with the court. Without conducting a formal hearing, the trial court denied the appellant's motion.

In Ex parte Moody, the Alabama Supreme Court stated the following:

"Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination, which applies at all stages of a criminal proceeding. The privilege against self-incrimination 'does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.' Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975).

"There should be equality between 'indigents and those who possess the means to protect their rights.' United States v. Tate, 419 F.2d 131 (6th Cir.1969). An indigent defendant should not have to disclose to the state information that a financially secure defendant would not have to disclose. In United States v. Meriwether, 486 F.2d 498, 506 (5th Cir.1973), the court stated:

" 'The names of witnesses to be called by the defendant could easily aid the government in determining the strategy the defendant plans to use at trial. The government should not be able to obtain a list of adverse witnesses in the case of a defendant unable to pay their fees when it is not able to do so in the cases of defendants able to pay witness fees. When an indigent defendant's case is subjected to pre-trial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny, serious equal protection questions are raised.'

"The Sixth Amendment right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). This right includes access to expert witnesses where it is appropriate. United States v. Wright, 489 F.2d 1181 1188 n. 6 (D.C.Cir.1973). Disclosure of the defense's trial strategy would impair the indigent defendant's right to effective assistance of counsel."

684 So.2d at 120 (emphasis original).

In his brief, the appellant presumes that Moody extends an automatic and unqualified right to a formal ex parte evidentiary hearing any time an indigent defendant requests the assistance of experts. Based on the Alabama Supreme Court's reasoning in Moody, we find that this presumption is incorrect and the appellant's argument is without merit.

The reasons behind affording an ex parte hearing to an indigent defendant requesting expert assistance are threefold: (1) protection of the privilege against self-incrimination; (2) prevention of premature disclosure of evidence, potential witnesses, and overall defense strategy; and (3) preservation of the right to effective assistance of counsel. These goals are met when an indigent defendant is afforded an opportunity to communicate his request to the trial court in the State's absence. As long as the State remains absent from the communication of this request, the ex parte hearing required by Moody may take place in various forms and is not limited to a formal hearing conducted before the trial court. Requiring a formal hearing in all instances is contrary to the flexible approach used in determining what procedural requirements are necessary to guarantee due process. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) ("due process is flexible and calls for such procedural protections as the particular situation demands"); Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230 (1961) ("[d]ue process ... is not a technical conception with a fixed content unrelated to time, place and circumstances"). Following its decision in Moody, the Alabama Supreme Court has approved this court's interpretation of what process is due to an indigent defendant requesting expert assistance.

In Bush v. State, 695 So.2d 70, 104 (Ala.Cr.App.1995), aff'd, 695 So.2d 138 (Ala.1997), we held that the trial court did not err in refusing an indigent defendant's request for a formal ex parte hearing on his motion for expert assistance.

"We do not agree with the appellant that the trial court refused to permit an ex parte hearing. The record shows that the trial court permitted the appellant to file with the court a supplementary motion under seal and afforded him the opportunity to file any additional information he desired in writing ex parte in support of his motion. The record shows, in pertinent part, the following:

" 'MR. BALSKE [defense counsel]: Has the Court denied the defendant's right to make an ex parte showing, to make this showing?

" 'THE COURT: No. I said that I will read this [supplementary motion]; and I'll read anything else you want me to look at.

" 'MR. BALSKE: I think what the defendant is requesting is to put on testimony to the Court.

" 'THE COURT: I had heard what you said; and I said I would look at anything you give me. If it's ex parte I might as well read it rather than listen to you saying it. I've read it [supplementary motion] rather than listen to you saying it. Do you understand what I'm saying.

" 'MR. BALSKE: I understand, Judge.

" 'THE COURT: I've read your [supplementary motion]; and if you want to give me something else I'll read it. If you are going to have ex parte there won't be anybody to cross-examine. If you haven't got any more to say than what you have on Number 3 [supplementary motion re: a ballistics expert], I overrule you; and I will look at whatever else you have got and reconsider if and when you file something.' "

695 So.2d at 104-05. The defendant did not object to the procedure used to review his motion requesting expert assistance. 695 So.2d at 105.

In Bush, we did not address the issue whether an indigent defendant was entitled to a hearing on the merits of his claim for expert assistance. However, we did find that the procedure used by the trial court in Bush satisfied the indigent defendant's request for an ex parte hearing. Id. Subsequent to its decision in Moody, the Alabama Supreme Court affirmed our decision in Bush, recognizing that due process does not always require that a trial court conduct a formal ex parte hearing on an indigent defendant's request for funds for expert assistance. Ex parte Bush, 695 So.2d 138 (Ala.1997).

Based on the legal principles expressed in Bush and approved by the Alabama Supreme Court, we find that the trial court did not violate the appellant's due process rights when it denied his motion requesting funds for expert assistance without first conducting a formal ex parte hearing. Just as in Bush, the trial court in this case reviewed the merits of the appellant's claim as submitted in his ex parte motion. The record indicates that at no time was the State privy to any information regarding the appellant's request that would violate his constitutional rights. In addition, the appellant never objected to the procedure by which the trial court reviewed the merits of his request. See Bush, 695 So.2d at 105. Furthermore, unlike the indigent defendant in Bush, the appellant did not request a formal evidentiary hearing on the motion.

Therefore, the trial court's denial of the appellant's motion for funds for expert assistance, without conducting a formal hearing, did not deprive the appellant of his right to due process of law.

II.

The appellant also argues the trial court denied him his right to a fair trial by denying his pretrial "Motion For Funds For Expert Assistance To Investigate Grand and Petit Jury Venires." The motion requested funds to employ an investigator, a statistician, a sociologist, and a jury selection expert to challenge the constitutionality of the current method of selection of the grand jury and petit jury venires in Jefferson County. The...