Moore v. State

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 Deoxyribo-nucleic 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? 1 ⁵⁸² 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. ⁵⁸³ 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 subse ⁵⁸⁴ quently 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. ⁵⁸⁵ 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 ⁵⁸⁶ 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 State contends that even if appellant could qualify as an indigent, he did not make a necessary showing to establish indigency. Appellant’s arguments are based on the assumption that he is indigent.

In his brief, appellant states that his “indigency has never been controverted or even challenged.” We agree with the State, however, that appellant’s indigency is in question and that he must first establish that he was indigent in order to prevail under any statutory or constitutional arguments. Thus, we begin our discussion on the issue of appellant’s indigency by addressing the State’s suggestion that appellant could not be considered indigent because he had employed private counsel. A In the instant case, appellant hired private counsel, who provided appellant with representation throughout his trial. Also, in an attempt to challenge the State’s DNA evidence, appellant hired an expert to analyze the evidence and prepare a report setting forth his findings.

Although the expert performed an analysis and prepared a report, he would not testify at trial without a further fee. Unable to make any additional payment to the expert, appellant claimed to be indigent and requested funds from the Public Defender’s Office and the lower court in order to pay for the testimony of his expert. Appellant’s ability to compensate private counsel, accompanied by his subsequent claim of indigency, presents us with a question of first impression in Maryland: whether a defendant, who has retained private counsel, can still be considered indigent for purposes of receiving funding for other services associated with legal representation, such as funding for an expert witness. ⁵⁸⁷ “Indigent” is defined in art. 27, § 2 as a person who “states in wilting that he [or she] is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.” (Emphasis added.) Additionally, the Public Defender Statute bases eligibility for services on need. “Need” is defined in § 7(a): “Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses of representation.” (Emphasis added.) Therefore, a defendant who demonstrates both an inability to “compensate competent private counsel” and to “provide all other necessary expenses of representation” clearly is considered indigent under the Public Defender Statute and is entitled to the full range of services provided for by the Public Defender. The more determinative question in this case, however, is whether a defendant who demonstrates an inability to fully pay for only one service, whether it be legal representation or the expense of necessary services associated with legal representation, can be considered indigent under the statute.

In other words, can a defendant retain private counsel and yet claim to be indigent for purposes of associated legal services, thus allowing representation by the Public Defender to be severed from other services accompanying its legal representation, such as expert testimony? As noted, supra, Maryland case law provides little guidance to aid us in determining if appellant was required to be without funds for both legal representation and other necessary expenses or if only his inability to pay for the DNA expert was sufficient to establish indigency under the Maryland’s Public Defender Statute. We have uncovered decisions in other jurisdictions, however, in which defendants retained private counsel, but nevertheless attempted to obtain payment for other services under a comparable public defender’s statute. In Morton v. Kentucky, 817 S.W.2d 218 (Ky.1991), the Kentucky Supreme Court dealt with a defendant who paid ⁵⁸⁸ $100 to a private attorney to represent him.

Thereafter, the defendant declared himself indigent, stating that he was “unable to provide any additional money for legal presentation or to afford expert witnesses to testify in his behalf ... to assure that (he received) his constitutional due process right to a fair trial.” Id. at 219 . The defendant’s private counsel was willing to continue on a pro bono basis, but the lower court required the defendant’s private counsel to withdraw and appointed the public defender as counsel. Following trial, the defendant appealed, arguing that he had been entitled to the benefits of Kentucky’s public defender statute while retaining his private counsel. On appeal, the Kentucky Supreme Court explained: A more difficult question is whether the trial court erred in its determination that a defendant who seeks and obtains the benefits of KRS 31.110(l)(b) [2] may not be represented by retained counsel who declares his [or her] intention to continue on a pro bono basis. [The defendant] correctly observes that the statute contains no express prohibition against having the Commonwealth provide “the necessary services and facilities of representation” when the defendant has obtained his [or her] own counsel.

Be this as it may, in our view, [the public defender statute] is a unified enactment which contemplates the necessity of a comprehensive determination whether a defendant qualifies for the benefits provided. For it to be determined that he [or she] does, he [or she] must be without the independent means to obtain counsel. The statute surely does not contemplate that a defendant would be indigent for purposes of KRS 31.110(l)(b), but still able to hire an attorney. If such were ⁵⁸⁹ the case, rarely would any defendant step forward to pay investigative costs and other services necessary for his [or her] representation.

Indeed, [under the statute] “needy person” or “indigent person” is defined as “a person who at the time his [or her] need is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation.” Under this definition and the general tenor of the entire Act, inability to obtain counsel and inability to obtain necessary services must go hand-in-hand. In an unusual case, however, it may be that an indigent defendant can obtain counsel which is truly pro bono; counsel who has neither sought nor obtained any fee or the promise thereof for legal services rendered or promised. In such a circumstance, the dual benefits provided by the Act would indeed be severed. The defendant would be indigent lor purposes of necessary services and facilities, but otherwise be able to provide his [or her] own counsel without cost to himself [or herself].

When such a circumstance produces the severance between ability to obtain counsel and need for other necessary expenses, the statute may be interpreted to permit the trial court to grant indigency status for purposes of KRS 31.110(1)(b) only. Id. at 220-21 (footnote added). Other jurisdictions have also disallowed severance of the public defender’s representation from the other services provided by the public defender. See People v. Cardenas, 62 P.3d 621, 622-23 (Colo.2002) (holding that defendant represented by a pro bono private attorney was not entitled to funding through the public defender’s office for the cost of an interpreter to translate out-of-court discussions and that if the “defendant wantfed] the state to pay the costs of ... supporting services, his [or her] only choice [was] to be represented by the public defender”); Subin v. Ulmer, 131 N.M. 350 , 36 P.3d 441, 443-44 (2001) (holding that a court could not order the public defender to provide expert witness services to a defendant represented by private counsel when the public defender’s office had a policy which required that the defen ⁵⁹⁰ dant first be a client of the public defender before he or she could avail himself or herself of the other services provided by the public defender).

Delaware has taken a slightly more proactive approach by instituting procedures in which a defendant who is initially represented by private counsel can still obtain funding for supporting services. While Delaware generally prohibits the severance of the dual benefits provided for under its public defender statute, defendants represented by private counsel are permitted to obtain funding for a private expert if their private counsel withdraws. The Delaware Supreme Court outlined the following procedure: First, a request for public funds to retain an expert witness must be “deemed an application (by private counsel) for leave to withdraw as counsel and for representation thenceforth by the Public Defender on the ground of indigency.” Second, the trial court must determine whether the defendant is indigent and thus eligible to receive assistance from the Public Defender under [the public defender statute]. Third, if the trial court finds that the defendant is indigent, the court is instructed to permit the defendant’s private counsel to withdraw and to refer the defendant’s case to the Public Defender.

Chao v. State, 780 A.2d 1060, 1066-67 (Del.2001) (citing Office of the Public Defender v. Thompson, 451 A.2d 835, 837 (Del. 1982)). Also, in situations wherein the defendant has retained a pro bono attorney, the Delaware Supreme Court established an additional procedure, permitting pro bono private counsel to continue to advocate for the defendant while allowing the defendant to obtain funding from the public defender’s office for expert services. It opined: In this situation, an indigent defendant represented by private counsel may request that the Superior Court exercise its discretion to allocate funds to pay for expert services if the trial court finds, after a hearing, that (1) the defendant is indigent; (2) private counsel is providing legal ⁵⁹¹ sendees without charge (“pro bono publico private counsel”); (3) it would [be] inappropriate to require pro bono publico private counsel to withdraw in favor of the Public Defender; and (4) the services are “necessary for adequate representation” in the circumstances. Id. at 1063.

In contrast to the above jurisdictions, some states draw no distinctions between defendants represented by private counsel and those represented by the public defender. Any ancillary services provided by the public defender are severable from representation by the public defender and, therefore, representation by the public defender is not a prerequisite to obtaining an expert witness or other collateral funding. The only precondition to obtaining funding is a determination that the defendant makes a proper showing of indigency and necessity. See Jacobson v. Anderson, 203 Ariz. 543 , 57 P.3d 733, 734-35 (2002) (permitting defendants represented by private counsel to declare themselves indigent for purposes of requesting the appointment of an expert witness); Stats v. Burns, 4 P.3d 795, 801-02 (Utah 2000) (holding that, although the ability to hire a private attorney is a factor in determining indigency, it is not the determinative factor and will not necessarily bar a defendant from obtaining a medical expert funded by the public defender’s office); Cain v. State, 758 So.2d 1257, 1258-59 (Fla.Dist.Ct.App.2000) (allowing a defendant, who was deemed to be “partially indigent” due to his representation by private counsel, to obtain costs for experts); In re Cannady, 126 N.J. 486 , 600 A.2d 459, 462 (1991) (holding that a defendant represented by private counsel could obtain funding for an expert witness because “Nowhere in the [public defender] Act is there a requirement that a defendant obtain legal services from the [office of the public defender] before he or she may obtain ancillary services from it”); State ex rel.

Rojas v. Wilkes, 193 W.Va. 206 , 455 S.E.2d 575, 577-78 (1995) (opining that retention of private counsel by a third party does not prohibit a defendant from being deemed indigent and qualifying for publicly funded expert assistance); English v. Missildine, 311 N.W.2d 292, 293-94 (Iowa 1981) (holding that ⁵⁹² representation by private counsel does not affect a defendant’s status as an indigent and does not forbid state expenditure of funds for an expert). We agree with those states which hold that the dual services provided by the public defender are not severable. The language of art. 27A, § 2, defining indigent as a person unable “to provide for the full payment of an attorney and all other necessary expenses of legal representation,” is a unified enactment and does not contemplate that a defendant could be indigent for purposes of “all other necessary expenses” and yet able to retain private counsel. See Morton, 817 S.W.2d at 220 .

We adopt Kentucky’s position that, “[ujnder this definition and the general tenor of the entire Act, inability to obtain counsel and inability to obtain necessary services go hand in hand.” Id. Thus, any funding for the necessary services associated with representation are conditioned upon representation by the Public Defender. In the case sub judice, appellant paid to be represented by private counsel and did not seek representation through the public defender. Therefore, appellant is not indigent and is foreclosed from requesting public funding for a DNA expert, either through the Public Defender’s Office or the lower court.

This is not to say that a defendant who proceeds with private counsel cannot later become indigent, apply for representation with the Public Defender, and avail himself or herself of the benefits of other necessary services such as an expert witness. We hold only that a defendant who pays for and retains private counsel throughout the adjudicatory process cannot be deemed indigent for purposes of obtaining a publically funded expert witness. Additionally, because appellant’s counsel was not providing pro bono services, we do not express an opinion on whether a defendant with pro bono private counsel is entitled to funding for other services associated with representation. 3 ⁵⁹³ B Appellant argues that the Public Defender and the trial court erred by not complying with the Public Defender Statute. Specifically, he contends that the Public Defender was required under art. 27A to provide funding for an expert witness regardless of whether appellant had