State v. McGhee

• Decision Date: 28 August 1974
• Docket Number: No. 1--56310,1--56310
• Citation: 220 N.W.2d 908
• Parties: STATE of Iowa, Appellee, v. Glenn Lee McGHEE, Appellant.
• Court: Iowa Supreme Court

Page 908

220 N.W.2d 908

STATE of Iowa, Appellee, v. Glenn Lee McGHEE, Appellant.

No. 1--56310.

Supreme Court of Iowa.

Aug. 28, 1974.

McCracken, Carlin & Darbyshire, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Stephen T. Moore, Asst. Atty. Gen., and Edward N. Wehr, Scott Co. Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

RAWLINGS, Justice.

On this appeal from judgment entered on jury verdicts finding defendant, Glenn Lee McGhee, guilty of numerous felonies, he challenges trial court's denial of an application for appointment of a psychiatrist to evaluate his time-of-offense criminal responsibility. We affirm.

March 17, 1972, McGhee was arrested in Rock Island, Illinois on charges stemming from a January 19, 1972, multiple murder related robbery of the Shamrock Tavern in Davenport, Iowa.

Appointment of counsel to represent the indigent accused was duly effected. Thereafter, on McGhee's application, an order was ultimately entered directing a psychiatric evaluation of defendant regarding his competency to stand trial. The court directed such examination be conducted at the Iowa Security Medical Facility, Oakdale, without prejudice to any subsequent request for additional psychiatric evaluation in order to prepare for trial.

June 20, 1972, Dr. Paul Loeffelholz, acting facility superintendent, submitted a report disclosing defendant was competent to participate in judicial proceedings. Other findings will be latter set forth as they pertain to our consideration of the issue presented.

August 22, 1972, defense counsel filed application for authority to engage the services of a psychiatrist at county expense because: Defendant may change his not guilty plea to not guilty by reason of insanity; he needs a psychiatrist to aid in his defense; defendant is without funds; assistance of a psychiatrist is necessary in the preparation of an adequate defense, and to assure defendant a fair trial.

Hearing on the aforesaid application and the State's resistance thereto revealed defendant's attorney deemed himself professionally unqualified to change the not guilty plea in absence of a psychiatrist's advice; if McGhee's financial condition so permitted he could engage a psychiatrist; and equal protection of the law required approval of defendant's application.

August 31, 1972, defendant's last mentioned application was denied because, in essence, no grounds had been shown or were apparent making a psychological reexamination or evaluation of defendant necessary or essential.

McGhee unsuccessfully filed a post-verdict new trial motion, thereby asserting error in the overruling of his last above noted application.

I. As previously indicated the sole issue here to be resolved is whether trial court erred in denying defendant's request for authority to engage an independent psychiatrist, at public cost, to determine the feasibility of a not guilty plea by reason of insanity, and for defense assistance. See generally State v. Booth, 169 N.W.2d 869, 871 (Iowa 1969); State v. Hunley, 167 N.W.2d 645, 649 (Iowa 1969); State v. Gramenz, 256 Iowa 134, 138--142, 126 N.W.2d 285 (1964).

Noticeably no question is instantly presented nor do we reach the matter of any proceeding under The Code 1971, Section 783.1.

In support of his position McGhee initially invokes Code § 775.5, which provides, in material part:

'An attorney appointed by the court to defend any person charged with a crime in this state shall be entitled to a reasonable compensation to be decided in each case by the court, including such sum or sums as the court may determine are necessary for investigation in the interests of justice. * * *.'

Defendant further contends refusal of the aforesaid application served to deny him his constitutional rights to equal protection, due process, and effective assistance of counsel. In this regard see generally Ross v. Moffitt, --- U.S. ---, ---, 94 S.Ct. 2437, 2443, 41 L.Ed.2d --- (1974); State v. Williams, 207 N.W.2d 98, 104--106 (Iowa 1973).

Conceding psychiatric services come within the ambit of § 775.5, quoted above, the question posed is whether defendant made requisite showing of entitlement thereto.

We are therefore called upon to delineate the standard by which trial courts may determine whether an indigent defendant is entitled to benefit of independent psychiatric assistance at public expense.

II. The matter of an indigent's right to expert services under § 775.5 has twice been considered by this court. See State v. Williams, cited above; State v. Hancock, 164 N.W.2d 330 (Iowa 1969).

But neither of those cases dealt with the standard to be utilized in determining whether an indigent accused should be accorded assistance of a psychiatrist.

In Hancock, supra, the court held an application for leave to employ a handwriting expert was premature. At the same time we observed, 'section 775.5 fairly contemplates payment for the purpose of obtaining an independent analysis of defendant's handwriting.'

On the other hand these additional quotes from Hancock, 164 N.W.2d at 332, instantly come into play:

'This section (775.5) lodges limited discretionary power in the trial court to disburse reasonable compensation to an attorney defending an indigent for the purpose of conducting an investigation in the interests of justice.

'* * *

'The statute clearly protects against frivolous, unwarranted claims by restricting payment to those investigations which in the court's judgment are necessary in the interests of justice.'

Later, in Williams, supra, we dealt with an application for funds with which to conduct a defense investigation and aptly commented, 207 N.W.2d at 105--106:

'While every criminal defendant who is financially unable to obtain counsel is entitled to appointment of counsel at state expense, not every similarly situated defendant is entitled to appointment of an investigator or to other expert services. Before authorizing such services to be furnished at state expense there must be a finding that they are necessary in the interest of justice.

'When counsel requests court authority for the employment of an investigator or experts, he should point out with specificity the reasons such services are necessary. Although counsel has the primary responsibility to determine if such investigative services will be necessary, the proper and effective administration of section 775.5 requires the trial judge to satisfy himself that such services are necessary and to articulate the reasons therefor.'

This court also said in Williams, 207 N.W.2d at 106:

'In view of the lack of specificity in defendant's application we conclude the trial court could not, on the sole basis of defendant's application, ascertain whether his claim was 'necessary in the interest of justice' or was 'frivolous and unwarranted."

Briefly stated, Williams demonstrates (1) our courts must perforce inceptionally rely upon an attorney's judgment as to the necessity of expert services in the defense of an indigent client, but (2) the attorney must specifically articulate the reason or reasons which serve to make such services necessary so the trial judge may independently determine the matter of need or necessity.

And, as observed in Williams, 207 N.W.2d at 106:

'(T)rial courts in Iowa would be prudent in familiarizing themselves with the provisions of the Criminal Justice Act as amended October 1970 (18 U.S.C.A. section 3006A), particularly subsection (e), when considering applications under section 775.5, The Code.'

Also, with regard to standards recently applied by some courts, under 18 U.S.C.A. § 3006A, in determining when expert services are necessary, see e.g., Brinkley v. United States, 498 F.2d 505 (8th Cir., 1974), United States v. Bass, 477 F.2d 723 (9th Cir. 1973); United States v. Chavis, 155 U.S.App.D.C. 190, 476 F.2d 1137 (1973); United States v. Theriault, 440 F.2d 713 (5th Cir. 1971); United States v. Taylor, 437 F.2d 371 (4th Cir. 1971); United States v. Schultz, 431 F.2d 907 (8th Cir. 1970); Williams v. United States, 310 A.2d 244 (D.C.Ct.App.1973). See also 18 U.S.C.A. § 4244; Annot., 34 A.L.R.3d 1256.

III. Five of the cases last above cited appear to provide helpful guidance in the formulation of an appropriate precept to be applied in the instant case and others of like nature.

First is United States v. Schultz, Supra. The question there presented was whether an indigent defendant was entitled to services of a psychiatrist under 18 U.S.C.A. § 3006A(e). In resolving that issue the court said:

'No standard can be arbitrarily articulated covering all circumstances under which an accused demonstrates his entitlement * * * to services of experts to present an adequate defense. * * *

'* * * Judge Murrah's opinion (Christian v. United States, 398 F.2d 517 (10 Cir. 1968)) refers to the interrelated responsibility between defense counsel and the trial court in assuring a defendant a fair opportunity to prepare and present his defense to a criminal charge. The accused's counsel bears the primary responsibility to determine if subsection (e) services 'will be necessary'; while the trial judge must approve the request and 'articulate the reasons therefor'. 398 F.2d at 519.' United States v. Schultz, 431 F.2d at 909--910 (Emphasis added).

A year later, in United States v. Theriault, Supra, Judge Wisdom, concurring specially, opined the due process requirement that indigent defendants be allowed court appointed experts when their case would otherwise be prejudiced is based upon 'equality between 'indigents and those who possess the means to protect their rights." 440 F.2d at 716--717. Judge Wisdom then advocated this implementation of § 3006A(e):

'I would read the statute, therefore, as requiring authorization for defense services when the attorney makes a reasonable request in circumstances in which he would independently engage such services if his client had the financial...