Moore v. State

• Decision Date: 28 January 2004
• Docket Number: No. 1394,1394
• Citation: 841 A.2d 31,154 Md. App. 578
• Parties: Frederick James MOORE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

841 A.2d 31

154 Md. App. 578

Frederick James MOORE v. STATE of Maryland.

No. 1394, Sept. Term, 2002.

Court of Special Appeals of Maryland.

January 28, 2004.

Julie M. Kazaks (Albert H. Turkus, Kenneth W. Gideon, W. Bradley Ney, on brief), Washington, DC, for appellant.

Diane E. Keller (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before DAVIS, JAMES R. EYLER, and WILLIAM W. WENNER (retired, specially assigned), JJ.

DAVIS, J.

Appellant Frederick James Moore was charged with first degree murder by an indictment filed on January 4, 2001 in the Circuit Court for Howard County. On January 16, 2001, private counsel entered his appearance on behalf of appellant. Subsequently, the State filed a notice to introduce Deoxyribonucleic Acid (DNA) evidence on March 7, 2001. Following discovery of the DNA evidence, appellant filed a motion for financial aid on November 20, 2001, requesting that the Office of the Public Defender (Public Defender) or Howard County pay for the services of a DNA defense expert. At a hearing held on January 14, 2002, the Public Defender announced that it refused appellant's request, citing that it was the policy of the Public Defender not to provide funds for experts in private counsel cases. Also at the hearing, Judge Raymond J. Kane, Jr., denied appellant's request for funding, stating that the court did not have any available funds. Appellant was subsequently tried by a jury in a five-day trial beginning on January 28 and ending on February 1, 2002. The jury convicted appellant of first degree murder and he was sentenced to life imprisonment on August 21, 2002.

Appellant filed his timely appeal on September 5, 2002, presenting three questions for our review, which we rephrase and combine into two questions as follows:

I. Did the trial court err by denying appellant's motion requesting funding for a DNA defense expert on the grounds of indigency when appellant had retained and financed private counsel? ¹

II. Did the trial court err by excluding other crimes evidence of a separately tried and convicted co-defendant?

We answer appellant's questions in the negative and therefore affirm the judgment of the circuit court.

FACTUAL BACKGROUND

On the night of November 2, 2002, appellant, Scott Brill, and a fourteen-year-old girl named Ashley Nicole Mason arrived at the home of Martise Stewart. While at Stewart's residence, an argument erupted among the three—with appellant and Brill in disagreement with Mason. The argument eventually became violent when Brill punched Mason in the face. Soon after the argument, appellant, Brill, and Mason left Stewart's residence in a small car, with appellant driving and Brill and Mason in the back seat. Several hours later, appellant and Brill returned to Stewart's residence. Appellant indicated to several individuals that he and Brill had killed Mason using a "buck knife" and put her body behind a Pizza Hut Restaurant. Also, appellant had blood smeared on his boots and legs and Brill had multiple lacerations on his arms.

The body of Mason was discovered on November 3, 2000, in a wooded area behind a Pizza Hut Restaurant, located in Howard County, Maryland. Police recovered several items at or near the crime scene and collected various evidentiary samples from the body of Mason. The State contracted with Cellmark Diagnostics, Inc. (Cellmark) to perform a DNA analysis of the collected items and samples and compare the results with the DNA profiles of both appellant and Brill. Cellmark concluded that Moore's DNA profile was present on some of the items and samples collected.

Appellant was indicted for the murder of Mason on January 4, 2001. Appellant did not apply to the Public Defender but instead privately retained Sheldon C. Mazelis, Esquire, to represent him. Mazelis entered his appearance on appellant's behalf on January 16, 2001. Appellant stated that he was able to pay for private counsel only because he recently acquired funds for physical injuries he received in a motor vehicle accident. On March 7, 2001, the State filed its notice of intention to introduce DNA profile evidence at trial. Appellant requested and was eventually provided with the State's DNA materials. After receiving the materials, appellant paid $1,000 to a DNA expert for the purpose of analyzing Cellmark's results. The DNA expert provided a preliminary opinion regarding the testing methods used by Cellmark, but would not testify at trial without additional payment. Unable to pay for further services from the expert, appellant filed a motion on November 20, 2001, requesting that the Public Defender or Howard County provide financial aid for the testimony of his DNA expert. Although he still retained the services of private counsel, appellant claimed to be indigent. A hearing on the motion was held on January 14, 2002, at which appellant stated he was indigent but made no factual showing establishing his indigency. In response to appellant's motion, a member of the Public Defender's Office explained:

Upon discussion with [the State's Attorney] and upon reviewing the pleadings, I telephoned Mr. Mazelis and gave him the bad news, which is that the policy of the [Public Defender] is that we do not provide funds for experts in private counsel cases. That was my understanding of the policy. To confirm that, I telephoned the Deputy Public Defender.... That is the policy. They are not willing to make an exception.

The trial judge reviewed the budget of the court and concluded that it did not have available funds. As a result, the trial judge denied appellant's request by refusing to provide funding for his expert's testimony and by refusing to order the Public Defender to provide the funding. Appellant was subsequently tried without the testimony of his retained expert and convicted by a jury on February 1, 2002. On August 21, 2002, he was sentenced to life imprisonment. Appellant filed this appeal on September 5, 2002.

LEGAL ANALYSIS

Appellate Review of Policy of Public Defender

In his questions presented, appellant implies that we have authority to directly review the actions of the Public Defender. Appellant avers that the refusal of the Public Defender to provide a DNA expert violated his constitutional rights and the Public Defender Statute found in Maryland Code (1957, Repl.1997), art. 27A, resulting in an error that is reviewable in this appeal. Additionally, in his brief, appellant explicitly argues that "[t]he Public Defender's policy to deny aid to an indigent defendant is reviewable for abuse of discretion on direct appeal." He is wrong.

Our review focuses on the actions of the trial court and whether the court erred. "Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court." Md. Rule 8-131(a) (emphasis added). "The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction." Md.Code (2002 Repl. Vol), Cts. & Jud. Proc. (C.J.), § 12-301 (emphasis added). The Court of Appeals has stated:

[T]he Constitution of Maryland makes it clear that the Court of Special Appeals may exercise only appellate jurisdiction.

That the exercise of appellate jurisdiction requires a prior action by some judicial authority, or the prior exercise of judicial power, has been regularly recognized by the courts of this country. And courts have held that review of the decision of an administrative agency is an exercise of original jurisdiction and not of appellate jurisdiction.

Shell Oil Co. v. Supervisor of Assessments of Prince George's County, 276 Md. 36, 42-43, 343 A.2d 521 (1975) (citations omitted).

The Public Defender is an executive agency and we do not directly review its discretionary decisions—to do so would be an exercise of original jurisdiction and outside the scope of our authority. If the Public Defender has abused its discretion, as appellant claims, by not providing funding for an expert witness, the matter is best left to post-conviction proceedings. As this Court noted: "Although the State Public Defender has discretion over the expenditure of funds on behalf of his indigent clients, if it appears that such discretion has been abused, the matter may be appropriately considered in post[-]conviction proceedings." Gorman v. State, 67 Md.App. 398, 407, 507 A.2d 1160 (1986). The Court of Appeals recently stated:

We have explained on numerous occasions that a post-conviction proceeding pursuant to Maryland Uniform Post Conviction Procedure Act, Maryland Code, § 7-102 of the Criminal Procedure Article (2001), is the most appropriate way to raise the claim of ineffective assistance of counsel. The Act allows the convicted person to attack the judgment collaterally by challenging the legality of the conviction and incarceration in a separate evidentiary proceeding. A post-conviction proceeding, often called a "collateral proceeding," brought under the Act is not an appeal of the judgment; rather, it is a collateral attack designed to address alleged constitutional, jurisdictional, or other fundamental violations that occurred at trial.

Mosley v. State, 378 Md. 548, 558-560, 836 A.2d 678 (2003) (citations and footnotes omitted).

I

Appellant avers that the public defender and the lower court violated Maryland's statutory framework providing legal aid to indigents and that his constitutional rights to due process of law, equal protection of law, and effective assistance of counsel were violated by denying the funding required for his expert to testify. In response, the State asserts that any statutory or constitutional requirement to provide appellant funding for expert testimony is contingent upon indigency. Because appellant had retained private counsel, the State suggests that he could not be deemed indigent for purposes of any statutory or constitutional analysis. Moreover, the...