State v. Ballard
| Decision Date | 08 April 1993 |
| Docket Number | No. 255A92,255A92 |
| Citation | 333 N.C. 515,428 S.E.2d 178 |
| Parties | , 61 USLW 2706 STATE of North Carolina v. Lonnie Winslow BALLARD. |
| Court | North Carolina Supreme Court |
Appeal of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Hight, J., at the 26 February 1992 Regular Criminal Session of Superior Court, Durham County, on a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 17 March 1993.
Michael F. Easley, Atty. Gen. by Jeffrey P. Gray, Asst. Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Janine Crawley, Asst. Appellate Defender, Raleigh, for defendant-appellant.
Defendant was tried in a noncapital trial for murder in the first degree of Marlon Branch. The trial court denied defendant's motion that he be allowed to give evidence supporting his request for appointment of a psychiatric expert in camera and ex parte. We hold that an indigent defendant who requests that evidence supporting his motion for expert psychiatric assistance be presented in an ex parte hearing is constitutionally entitled to have such a hearing, and that the trial court erred in denying defendant's request to be heard on this matter ex parte.
On 11 October 1990 defendant's court-appointed counsel moved before Judge Orlando F. Hudson for an in camera review of information supporting the appointment of a psychiatric expert to assist defendant in the preparation of his defense. When Judge Hudson asked whether the in camera review was to be "with or without the prosecutor," defense counsel responded: "Without the presence of the District Attorney." Judge Hudson then denied the motion, but offered to hear such information in open court. Defense counsel moved for the appointment of a psychiatric expert but stated that he could not "particularize [defendant's] need in the presence of the District Attorney ... because in so doing ... I may jeopardize my client's defense." The trial court, in its discretion, again ruled that it would "not hold an in camera ... hearing, ex parte of the State," to which defendant excepted.
Defendant's court-appointed attorney was permitted to withdraw as counsel on 13 December 1990. He was succeeded by the appointment of the Public Defender, who was subsequently disqualified following a hearing on the State's motion because of a potential conflict of interest.
On 3 September 1991 Judge Coy Brewer, Jr., heard two motions from a third court-appointed attorney. The first motion requested that defendant be committed to Dorothea Dix Hospital for an evaluation of his competency to proceed to trial. In the second the attorney requested the court's permission to withdraw as defendant's counsel. Both motions were granted, and on 5 September 1991 a fourth attorney was appointed to represent defendant.
On 21 November 1991 Judge J. Milton Read, Jr., held a hearing regarding defendant's competency to stand trial. Dr. Patricio P. Lara, a forensic psychiatrist at Dorothea Dix Hospital, testified that defendant had declined to take psychological tests normally given to patients undergoing evaluation. Nevertheless, defendant was interviewed and observed over the course of eighteen or nineteen days at the hospital, and Dr. Lara was able to conclude, based on these observations, that defendant was competent to stand trial.
On 10 February 1992 defendant's fourth court-appointed attorney moved to withdraw as counsel, in part because defendant had recently refused to meet with him or to respond to the attorney's letters. Subsequently, at trial, defendant stated that he wished to represent himself; the trial court allowed defendant to proceed pro se and directed defendant's fourth counsel to assist him in his defense.
Defendant contends that denying his motion for an ex parte hearing of evidence supporting his request for the assistance of a psychiatric expert forced him to jeopardize his privilege against self-incrimination and his right to the effective assistance of counsel, guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. We agree.
In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that once a defendant has made "an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense," fundamental fairness requires "the State ..., at a minimum, [to] assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 82-83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66. Since Ake, this Court has frequently recognized that "fundamental fairness and the principle that an indigent defendant must be given a fair opportunity to present his defense" underlie the indigent defendant's right to the assistance of an expert at state expense. State v. Parks, 331 N.C. 649, 655, 417 S.E.2d 467, 471 (1992) (quoting State v. Tucker, 329 N.C. 709, 718, 407 S.E.2d 805, 811 (1991)). We have applied these principles to defendants' motions for many kinds of experts, including independent investigators, e.g., State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986); pathologists, e.g., State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986); medical experts, e.g., State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986); psychiatrists, e.g., State v. Parks, 331 N.C. 649, 417 S.E.2d 467; and fingerprint experts, e.g., State v. Phipps, 331 N.C. 427, 418 S.E.2d 178 (1992). In each of these cases we have noted, in accord with Ake, that the indigent defendant is entitled to the assistance of an expert in preparation of his defense when he makes a "threshold showing of specific necessity." E.g., State v. Parks, 331 N.C. at 656, 417 S.E.2d at 471. The indigent defendant must "make[ ] a particularized showing that (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it would materially assist him in the preparation of his case." Id.
In none of these cases, however, did we address directly the question raised in this appeal--whether the trial court is constitutionally required, upon timely motion, to allow a defendant to show a need for psychiatric assistance in an ex parte hearing. In State v. Phipps, 331 N.C. 427, 418 S.E.2d 178, this Court considered whether a defendant's rights to due process of law, to effective assistance of counsel, and to reliable sentencing in a capital trial mandated that his motion for an independent fingerprint expert be heard ex parte. Under the facts of that case, we concluded: "Whereas an indigent defendant's access to the 'basic tools of an adequate defense' is a core requirement of a fundamentally fair trial, the need for an ex parte hearing on a motion for expert assistance is not." Phipps, 331 N.C. at 450, 418 S.E.2d at 190 (quoting Ake, 470 U.S. at 77, 105 S.Ct. at 1093, 84 L.Ed.2d at 62). Although we stated in Phipps that "an ex parte hearing is not constitutionally required in every case," we acknowledged that "[t]here are strong reasons for conducting the hearing ex parte," id., 331 N.C. at 451, 418 S.E.2d at 191, including the defendant's "right to obtain [the expert] assistance [necessary to assist in preparing his defense] without losing the opportunity to prepare the defense in secret." Id. at 449, 418 S.E.2d at 189 (quoting Brooks v. State, 259 Ga. 562, 565, 385 S.E.2d 81, 84 (1989)).
When the indigent defendant is seeking the assistance of a psychiatric expert, the "strong reasons for conducting the hearing ex parte " are especially applicable. To expose to the State testimony and evidence supporting a defendant's request for an independent psychological evaluation and a psychiatrist's trial assistance lays bare his insanity or related defense strategy. A hearing open to the State necessarily impinges upon the defendant's right to the assistance of counsel and his privilege against self-incrimination. We hold that these constitutional rights and privileges, guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, entitle an indigent defendant to an ex parte hearing on his request for a psychiatric expert.
That the defendant in Phipps was requesting an ex parte hearing in order to apply for funds for a fingerprint expert distinguishes that case critically from the case now before us. The key difference between a hearing on the question of an indigent defendant's right to a fingerprint expert and one on the question of his right to a psychiatric expert is that the object of adversarial scrutiny is not mere physical evidence, but the defendant himself. The matter is not tactile and objective, but one of an intensely sensitive, personal nature. The public, adversarial nature of an open hearing is inevitably intimidating when the issue is the defendant's mental instability. This atmosphere can daunt the defendant's desire to put before the trial court all his evidence in support of his motion. This was plainly one reason defendant in this case failed to make a threshold showing of his need for an independent psychiatric expert: he was willing to present evidence to the trial court in chambers, but he was not willing to reveal it to the State.
Moreover, because the area of psychiatric expertise differs importantly from that of fingerprint analysis, defendant's constitutional rights are far less likely to be jeopardized by the presence of the prosecutor when defendant attempts a threshold showing for a fingerprint expert than when he offers evidence to support his need for a psychiatrist. See State v. Moore, 321 N.C. 327, 348-49, 364 S.E.2d 648, 659 (1988) (Mitchell, J., concurring) (...
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