State v. Touchet

• Citation: 642 So.2d 1213
• Parties: 93-2839 La
• Decision Date: 06 September 1994
• Court: Louisiana Supreme Court

Page 1213

642 So.2d 1213

93-2839 La. 9/6/94

STATE of Louisiana v. Kevin TOUCHET.

No. 93-KK-2839.

Supreme Court of Louisiana.

Sept. 6, 1994.

Concurring Opinion of

Chief Justice Calogero Sept. 30, 1994.

G. Paul Marx, Lafayette, for applicant.

Richard P. Ieyoub, Atty. Gen., Hon. J. Nathan Stansbury, Dist. Atty., Michael Harson, Asst. Dist. Atty., for respondent.

Marilyn M. Fournet, Baton Rouge, for Louisiana Ass'n Defense Counsel, amicus curiae.

[93-2839 La. 1] HALL, Justice. ¹

Writs were granted in this case to consider the issue of whether and to what extent indigent defendants are entitled to ex parte hearings on their motions for state funding of expert witness services. We affirm in part and modify the holding of the lower court to require that an indigent defendant's request for funding may be filed ex parte and that such request is to be considered in camera by the trial court. The state is to be notified of the ex parte hearing, and, while not to be present or participate initially in the hearing itself, is to be allowed to file an opposition to the motion. The trial court is then to determine, in camera, whether the defendant has made a showing that the proceedings should continue in camera so as to protect the defendant from disclosure of his defense. If the defendant fails to show a need for secrecy, the state is to be allowed to participate in the hearing; if the defendant makes the required showing, then the hearing is to continue in camera. We further hold that, in this hearing, the defendant must show his need for the expert assistance and the amount of funds necessary to secure such assistance. Once this showing is made, the trial court is empowered to order the state to provide the needed funds.

[93-2839 La. 2] I.

Defendant Kevin Touchet was charged with first-degree murder, a violation of LSA-R.S. 14:30, and the state is seeking the death penalty. Counsel for the defendant filed an in camera motion requesting that, after an ex parte hearing, the state, through the court fund, provide funds for payment of expert assistance for this indigent defendant. Specifically, the defendant requested funds for the payment of experts to examine certain specific evidence gathered by the state, listing the particular experts to be retained and the estimated cost of their services.

The trial court denied the motion for an ex parte hearing, holding that, in the absence of a showing of "particularized prejudice [to the defense] by providing to the District Attorney information which he would not otherwise be entitled to have", an indigent defendant is not entitled to an ex parte hearing on requests for expert funding. The trial court also opined that, since the state would have to pay for the experts' fees, the state (through the District Attorney) should participate in the hearing on the necessity and cost of defense expert assistance. Finally, the trial court ordered the motion sealed pending a ruling on defendant's anticipated writ application.

Defendant next sought review of this ruling in the court of appeal, and the court of appeal denied the defendant's application. Defendant then applied for writs from this court seeking both a reversal of the trial court ruling and some articulation of guidelines for the handling of requests by indigent defendants for funds for payment of the fees of experts. Writs were granted. State v. Touchet, No. 93-2839 (La.3/18/94), 634 So.2d 843 (La.1994).

II.

The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." This provision has been construed to signify that, in a prosecution against an indigent defendant,

justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.

Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985). This belief has led to many decisions by our nation's highest court that require a State, when it "brings its judicial power to bear on an indigent defendant in a criminal proceeding," to "take steps to assure that the [93-2839 La. 3] [indigent] defendant has a fair opportunity to present his defense." Id.

Just what "steps" the state must take in order to give indigents "an adequate right to present their claims fairly within the adversary system" has been the subject of much litigation. Ross v. Moffit, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). In order to provide an indigent with the "fair opportunity" to present his defense, the state has been required to provide to the indigent defendant cost-free assistance of court-appointed trial counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), as well as assistance of court-appointed appellate counsel on his direct appeal as a matter of right, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Further, the state is required to ensure that this assistance is effective. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Part of the state's obligation in providing effective assistance of counsel to an indigent defendant is satisfied by its furnishing of the indigent's defense counsel with all of the "basic tools of an adequate defense," at no cost to the indigent defendant. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). This requirement stemmed from the belief that "[t]here can be no equal justice where the kind of trial a man gets depends upon the amount of money he has." Griffin v. People of the State of Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).

In Ake v. Oklahoma, supra, the Supreme Court discussed whether or not a psychiatric expert was a "basic tool" for a defendant's case such that the state should provide one to an indigent at public expense. There, the Court examined whether or not such an expert was a part of the "raw materials integral to the building of an effective defense." Ake, 470 U.S. at 78, 105 S.Ct. at 1093. Using the Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), "balancing test", the Court considered the private interest to be affected by the State action or inaction, the governmental interest in the State's action or inaction, the risks of erroneous deprivation of protected liberty interests that are presented by the process, and, finally, the effect of additional safeguards upon this risk of erroneous deprivation. Id. The Court found that the private interest of the accused in having a psychiatric expert to help avoid an erroneous conviction was high due to the threat of imprisonment or, in a capital case, of death. The state interest in preserving its fisc was held to be "tempered" by its shared interest in the accuracy of its judicial proceedings. Finally, the fact that over 40 states and the federal government had provided for the cost-free appointment of such experts implicitly showed that, when the state has made mental condition [93-2839 La. 4] of the accused relevant to criminal responsibility, the assistance of a psychological expert may well be a "crucial" safeguard to "the defendant's ability to marshal his defense" and, by so doing, ensure an accurate result. Id.

This court has extended this recognition of need to other types of expert assistance "crucial" to an indigent's defense. See, e.g., State v. Craig, No. 93-2515, c/w State v. Harris, No. 93-2589, (La. 5/23/94), 637 So.2d 437 (La.1994), State v. Langlois, 605 So.2d 1155 (La.1992); State v. Carmouche, 527 So.2d 307 (La.1988); and State v. Madison, 345 So.2d 485 (La.1977). In State v. Madison, this court noted that expert investigative assistance might be critical to an indigent's defense. In State v. Carmouche, we ordered the trial court to grant defendant's request for experts in fingerprint analysis and serology. In State v. Craig, we upheld a trial court decision ordering payment for the services of an investigator, a psychologist, and a mitigation expert. In Craig, this court further stated that, after an indigent defendant makes a threshold showing as to need for expert assistance, the assistance should be provided to him at governmental expense. 637 So.2d at 446-447. We now amplify that holding to state that the indigent defendant should establish that the expert assistance will be necessary to the construction of an effective defense.

The United States Supreme Court has refused to hold that an indigent defendant is to be furnished with every "tool" of an effective defense that a wealthier counterpart could afford. In Ross, supra, the Court held that providing cost-free counsel to an indigent for the preparation of discretionary appeals was not the State's responsibility. The Court there stated that "the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required." Ross, 417 U.S. at 617, 94 S.Ct. at 2447. The Court defined the state's duty as not being "to duplicate the legal arsenal that may be privately retained by a criminal defendant ... but only to assure the indigent defendant an adequate opportunity to present his claims fairly...." Id.

While the United States Supreme Court has never specifically passed on what type of showing is required to entitle a defendant to state-funded expert assistance, it has stated what kinds of showings will not entitle an indigent to this type of state support. In Caldwell v. Mississippi, 472 U.S. 320, 325, n. 1, 105 S.Ct. 2633, 2637, n. 1, 86 L.Ed.2d 231 (1985), the Court refused to require the state to fund a ballistics expert when the defendant had only "offered little more than [93-2839 La. 5] undeveloped assertions that the requested assistance would be beneficial." Some federal circuit courts have passed upon what showing an...