Addison v. State

MEREDITH, J. Elton Addison appeals the pretrial order of the Circuit Court for Montgomery County that denied his motion for an ex parte hearing regarding his proposed pretrial use and disclosure of confidential records that he had previously subpoenaed and reviewed in the court’s chambers. The State has moved to dismiss the appeal, arguing that the ruling denying the ex parte hearing is not immediately appealable. For the reasons set forth below, we conclude that the ruling is not immediately reviewable under the collateral order doctrine, and we grant the motion to dismiss this interlocutory appeal. We do not reach the merits of Addison’s question as to ¹⁴² whether the motion court had the authority to grant Addison's request for an ex parte hearing regarding his proposed pretrial use of the confidential records.

Facts and Procedural History A Montgomery County grand jury indicted Elton Addison on one count of sexual abuse of a minor and six counts of sexual offense in the third degree. Addison filed two separate motions for subpoenas for documents to be produced before trial, requesting that the Montgomery County Public Schools (“MCPS”) and the Montgomery County Department of Health and Human Services (“DHHS”) be compelled to provide the alleged victim’s educational records and health records. The MCPS and the DHHS both opposed the defendant’s motions for subpoenas. Both argued that these governmental agencies should not be required to disclose their respective records, citing the alleged victim’s privacy rights and the confidentiality of the documents.

On June 29, 2005, attorneys for the defendant, the State, and MCPS appeared for a hearing in the Circuit Court for Montgomery County. At that hearing, Addison’s counsel clarified the limited access she was seeking at that juncture, stating: [Defense Counsel]: I’m asking to be able to look at [the records of the alleged victim]. All that I’m asking to do is to inspect them. If there is anything in there that is relevant or that I’m going to use in any way, I will ask the Court’s permission.

The confidentiality will be maintained. I will not even discuss what’s in the records with my client without the Court’s permission. If there is some aspect of the records that I think will be relevant in this case or that I could gain useful information from, we will have a hearing before the Court, and the Court will decide whether I can use that or not, whether I can reveal it further. THE COURT: [addressing counsel for MCPS ] [D]id you have a proposed order on this matter? ¹⁴³ [Counsel for MCPS]: Yes, Your Honor.

Since [defense counsel] and I have argued this issue many times, there is an order that [defense counsel] has seen before, ... which does recite what [defense counsel] represented to the Court, that the inspection would be permitted by counsel. They then could tab something that they believe is important, and it would all be subject to further hearing before the Court as to whether they can make copies, whether they could use any of that information at trial. So this is ... kind of a standard order that has been used in the past when the Court has deemed it appropriate for there to be a review. The order that was then entered by the circuit court with respect to the records of MCPS following the June 29, 2005, hearing, provided, in accordance with Zaal v. State, 326 Md. 54, 84-88 , 602 A.2d 1247 (1992): ORDERED, that the records shall be delivered to the chambers of [the motion judge] and that counsel for the parties are permitted to review the records in question in their capacity as officers of the Court; and it is further, ORDERED, that should counsel for either the State or the Defendant desire to use the records in question or any information contained therein, they shall seek Court approval on such use; and it is further, ORDERED, that the use of the records in question is subject to further hearing and decision of this Court, which shall also address the scope of the use and disclosure of the records or information contained therein, restrictions on copying and disclosure, and the imposition of any further orders as may be appropriate.

Subsequently, the circuit court also entered an order permitting inspection of the records of DHHS but prohibiting disclosure pending further order of court. Cfi. Baltimore City Police Department v. State, 158 Md.App. 274, 288-91 , 857 A.2d 148 (2004)(describing process for in camera inspection of confidential records, followed by opportunity to proffer need for disclosure). The records of both MCPS and DHHS were ¹⁴⁴ delivered to the court’s chambers, and counsel for both Addison and the State reviewed the records in chambers.

After reviewing the records in chambers, Addison’s counsel moved to be heard ex parte with respect to her proffers of justification for making use of certain of the records to prepare for trial. Counsel argued that such proffers would require the disclosure of her defense strategy and her work product, and, therefore, should not be shared with the prosecution. Counsel further argued that requiring her to disclose her proposed uses of the records and argue in the presence of the prosecutors why she should be permitted to make further pretrial use and/or disclosure of the MCPS and DHHS records would violate Addison’s right to due process, his right against self-incrimination, and his right to effective assistance of counsel. At the hearing on the motion to present the proffers ex parte, counsel for Addison clarified that the requested “ex parte” hearing would not exclude attorneys who represent the custodians of the records, but would exclude the prosecutors, and would be a closed proceeding.

Counsel stated: [Defense counsel]: ... The hearing would be ex parte, but those two entities [ie., MCPS and DHHS,] are still charged with maintaining the confidentiality of their records. So I think that they would be able to argue to the Court, if the Court accepted that[ ] I would be able to use certain of the records, perhaps the scope or what I could do with the records. I think that at the end of the ex parte hearing, the Court could, of course, and I would ask this, that the Court seal the record so that those attorneys would ... be prevented from discussing with anyone what we talked about at the ex parte hearing.

The prosecutor objected to the proposed procedure, and asserted that the State was entitled to be present at any such hearing. The circuit court denied the request for an ex parte hearing regarding Addison’s proposed use of the MCPS and DHHS records, stating: ¹⁴⁵ THE COURT: I have reviewed the memorandum and I’ve listened to the arguments of counsel. It is a novel and interesting argument.... But as [defense counsel] concedes, there’s no Maryland case law on it....

So it would be most unusual to exclude the State from a hearing of this nature, and I don’t feel that authority exists to do so____ I’m going to deny the motion to conduct a hearing as an ex parte hearing. Addison then filed this interlocutory appeal to challenge that denial, and the circuit court stayed the criminal action pending resolution of this appeal. Discussion 1. Ex parte Hearings The motion court was understandably skeptical about Addison’s proposed procedure for conducting an ex parte hearing on a pretrial issue.

In our adversarial system of justice, ex parte communications between the court and one party to a dispute are generally disfavored and, in most instances, prohibited. Limited exceptions to the general rule that “a judge shall n[ot] initiate, permit, or consider ex parte communications” are set forth in The Maryland Code of Judicial Conduct in Maryland Rule 16-813, Canon 3B(6), which provides: (a) A judge shall accord to every person who has a legal interest in a proceeding pending before the judge, or that person’s lawyer, the right to be heard according to law. (b) While presiding over a proceeding, a judge shall neither initiate, permit, or consider ex parte communications nor consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as otherwise provided in Canon 3B (6). (c) Ex parte communications that relate to scheduling or other administrative purposes or emergencies and not to substantive matters or issues on the merits are authorized, if: (i) circumstances require; (ii) the judge reasonably be ¹⁴⁶ lieves that no party will gain a procedural or tactical advantage as a result of the communication; (iii) the judge makes provision promptly to notify all other parties as to the substance of the ex parte communication; and (iv) the judge affords the parties reasonable opportunity to respond.

(d) With the consent of the parties, a judge may confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. (e) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding if the judge: (i) makes provision promptly to notify all of the parties as to the expert consulted and the substance of the advice; and (ii) affords the parties reasonable opportunity to respond. (f) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities and with other judges. (g) A judge may initiate or consider an ex parte communication when expressly authorized by law to do so.

The proposed draft of the American Bar Association’s Revised Model- Code of Judicial Conduct retains a similar prohibition against substantive ex parte communications except when “expressly authorized by law.” See November 2006 Report of the ABA Joint Commission To Evaluate The Model Code of Judicial Conduct, Rule 2.9. 1 ¹⁴⁷ Maryland Rule 1-351 similarly sets forth a general prohibition against granting ex parte applications for relief, stating: No court shall sign any order or grant any relief in an action upon an ex parte application unless: (a) an ex parte application is expressly provided for or necessarily implied by these rules or other law, or the moving party has certified in writing that all parties who will be affected have been given notice of the time and place of presentation of the application to the court or that specified efforts commensurate with the circumstances have been made to give notice. The Maryland Lawyers’ Rules of Professional Conduct likewise impose an obligation upon attorneys to refrain from engaging in ex parte communications. In Maryland Rule 16-812, Maryland Rule of Professional Conduct 3.5(a)(7) provides: ¹⁴⁸ “A lawyer shall not ... communicate ex parte about an adversary proceeding with the judge or other official before whom the proceeding is pending, except as permitted by law.” When Addison made his motion for an ex parte hearing, the motion court was not persuaded by Addison’s arguments that such a hearing was, in the words of Judicial Canon 3B(6)(g), “expressly authorized by law.” Addison cited no Maryland case on point, but directed the court’s attention to a substantial number of cases from other states that have held, in the wake of Ake v. Oklahoma, 470 U.S. 68, 82-83 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), that a court may conduct an ex parte hearing to consider the request of a defendant who seeks funding for pretrial access to a psychiatric expert. Subsequent to the circuit court’s ruling in Addison’s case, the Maryland Court of Appeals has also addressed Ake , and has held that an indigent defendant seeking pretrial funding to engage a DNA expert is entitled to present the reasons supporting the request at an ex parte hearing.

Moore v. State, 390 Md. 343, 370-72 , 889 A.2d 325 (2005), cert. denied, — U.S. —, 127 S.Ct. 59 , 166 L.Ed.2d 22 (2006). Ake did not actually involve a dispute regarding the defendant’s entitlement to be heard ex parte. Rather, the issue in Ake was whether the indigent defendant in that capital case should have been provided the services of a court-appointed psychiatrist. The Supreme Court held there is a right to such services, stating: “We hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” 470 U.S. at 74 , 105 S.Ct. 1087 .

In dicta, the Court added a reference to “an ex parte threshold showing,” commenting: ‘When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.” Id. at 82-83 , 105 S.Ct. 1087 . ¹⁴⁹ When other courts later addressed the right of an indigent defendant to seek state funding under circumstances similar to those in Ake , the courts in many states either authorized or required that the hearing on such requests be conducted ex parte in order to avoid placing the defendant in a position of having to disclose defense theories and work product. By the time the Maryland Court of Appeals spoke on the subject, in Moore , numerous other states had already issued rulings that authorized or required ex parte hearings to consider a defendant’s requests for state funding. The Court of Appeals summarized its survey of other states’ positions on the subject as follows, 390 Md. at 370-71 , 889 A.2d 325 : Courts have split as to the necessity of ex parte hearings. Several states have statutes requiring an ex parte hearing when an indigent defendant requests appointment of an expert.

See, e.g., Minn.Stat. § 611.21 (2003); S.C. Stat. § 16-3-26(c) (2003); Tenn.Code Ann. § 40-14-207(b) (2003); Nev.Rev.Stat. Ann. § 7.135 (Michie 1998); N.Y. County Law § 722 -c (Consol.1977). The courts in Alabama, Arkansas, Florida, Georgia, Hawaii, Indiana, Michigan, Oklahoma, Tennessee, Texas, and Washington have held that an ex parte hearing is required. See Ex parte Moody, 684 So.2d 114, 120 (Ala.1996); Wall v. State, 289 Ark. 570 , 715 S.W.2d 208, 209 (1986); Brooks v. State, 259 Ga. 562 , 385 S.E.2d 81, 83-84 (1989), cert. denied, 494 U.S. 1018 , 110 S.Ct. 1323 , 108 L.Ed.2d 498 (1990); Arnold v. Higa, 61 Haw. 203 , 600 P.2d 1383, 1385 (1979); Stanger v. State, 545 N.E.2d 1105, 1115 (Ind.App.1989); People v. Loyer, 169 Mich.App. 105 , 425 N.W.2d 714, 722 (1988); McGregor v. State, 733 P.2d 416, 416-17 (Okla.Crim. App.1987); Barnett, 909 S.W.2d at 428; Williams v. State, 958 S.W.2d 186, 192-94 (Tex.Crim.App.1997); State v. Newcomer, 48 WashApp. 83, 737 P.2d 1285,1291 (1987).

The courts in Arizona, South Dakota, and Virginia have held that whether to hold an ex parte hearing is within the trial court’s discretion. See State v. Apelt, 176 Ariz. 349 , 861 P.2d 634, 650 (1993); State v. Floody, 481 N.W.2d 242, 254-56 (S.D.1992); Ramdass v. Commonwealth, 246 Va. ¹⁵⁰ 413, 437 S.E.2d 566, 571 (1993), vacated on other grounds, 512 U.S. 1217 , 114 S.Ct. 2701 , 129 L.Ed.2d 830 (1994). Louisiana requires an indigent defendant to show that he or she would be prejudiced if the hearing was not held ex parte. State v. Touchet, 642 So.2d 1213, 1220 (La.1994).

The North Carolina Supreme Court has held that an ex parte hearing is required when the request is for a psychiatrist, State v. Ballard, 333 N.C. 515 , 428 S.E.2d 178, 180 (1993), but not required when the request is for a non-psychiatric expert. State v. Phipps, 331 N.C. 427 , 418 S.E.2d 178, 190-91 (1992). See also Kimberly J. Winbush, Right of Indigent Defendant in State Criminal Prosecution to Ex Parte In Camera Hearing on Request for State-Funded Expert Witness, 83 A.L.R.5th 541 (2000). The Court of Appeals concluded in Moore that an ex parte hearing to consider the indigent defendant’s request is not only authorized, but is required in Maryland.

The Court explained, 390 Md. at 371-72 , 889 A.2d 325 : We believe the better view is that an ex parte hearing, when timely requested, is required. See generally Justin B. Shane, Money Talks: An Indigent Defendant’s Right to an Ex Parte Hearing for Expert Funding, 17 Cap. Def. J. 347 (2005); Giannelli, supra, at 1403-04.

Indigent defendants seeking state funded experts should not be required to disclose to the State the theory of the defense when non-indigent defendants are not required to do so. See, e.g., Barnett, 909 S.W.2d at 428 (holding that “[ijndigent defendants who must seek state-funding to hire a[n] ... expert should not be required to reveal their theory of defense when their more affluent counterparts, with funds to hire experts, are not required to reveal their theory of defense.”) In Moody , the Alabama Supreme Court discussed this issue as follows: “Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination, which ap ¹⁵¹ plies 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). t“]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.” Moody, 684 So.2d at 120 .

We agree. There are several factors that distinguish Moore from Addison’s case. Perhaps most significant is the Court’s focus on assuring that indigent defendants did not have to disclose their trial strategy in order to obtain state funding for the same sort of expert assistance a non-indigent defendant could obtain confidentially. Addison makes no claim that indigent defendants would have less access than non-indigent defendants have to the records of MCPS and DHHS if their arguments are not heard ex parte.

In the expert funding cases, no privacy rights of third parties are implicated. Cf. Zaal, supra, 326 Md. at 83 , 602 A.2d 1247 (“Juxtaposed against petitioner’s proffer is the victim’s legitimate interest in the privacy of the contents of her educational records.”). Even though Addison did not seek to exclude the custodians of the records from the “ex parte hearing,” those custodians may not be familiar with the allegations of the case and may not be in a position to discern potential dangers posed by some disclosures.

Appellant cited no case that authorized ex parte hearings regarding a defendant’s proposed pretrial use of records. To the contrary, all cases cited by appellant as authority for him ¹⁵² to be heard ex parte have dealt with indigent defendants seeking funding. Nevertheless, Addison urges us to expand upon the holding in Moore and rule that a defendant who is seeking access to something that would be of assistance in preparing a defense that is only obtainable upon court order is entitled to argue his request outside the presence of the prosecutor. The issue presented by Addison turns upon the authority of the trial court, rather than the specific facts of his case.

But the denial of his request to be heard ex parte is nevertheless an interlocutory ruling that does not fall within the collateral order doctrine. Accordingly, we are unable to address the merits of the question raised on appeal. 2. Interlocutory appeal Pursuant to § 12-301 of Md.Code (1974, 2002 Repl. Vol.), Courts and Judicial Proceedings Article (“CJ”), “a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” Section 12-101 (f) defines “final judgment” as “a judgment ... or other action by a court ..., from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” As the Court of Appeals stated in Jackson v. State, 358 Md. 259, 266 , 747 A.2d 1199 (2000), “it is well settled that, to be appealable, an order or judgment ordinarily must be final.” A “final judgment” from which a party may appeal is “one which settles the rights of the parties or concludes the cause ... and has been entered on the docket.” Mitchell Properties v. Real Estate Title, 62 Md.App. 473, 482 , 490 A.2d 271 (1985) (internal quotes